Trademark Infringement
India is considered as the mixed market that includes plenty of industries. They all operate under the concept of free market. The competition in the market system is at the top. Brand recognition and its value plays an integral part to compete in that kind of market. To achieve this trademark registration is the option to rely upon.
What do we understand by the term Trademark Infringement?
To protect trademarks in India, there is an act named the Trademarks Act that was formed in 1999. This act provides a set of rules and regulations for the purposes of registration, protection, and a fine against infringement with respect to trademarks.
In India, the body that is liable to deal with trademark security is the Indian Patent Office, which is executed by the Controller General of Patents, Designs, and Trademarks. Trademark infringement is considered the illegal use of a sign that is similar or near-similar to a registered trademark.
Different types of trademark infringement
Direct Infringement
- Unauthorized Use: Happens when the person uses the trademark without the permission of the trademark holder. If it is used under the eye of the owner, then it is not considered a breach or violation.
- Identical or Deceptively Similar: If both the used and the registered trademark are identical, or if consumers become puzzled between the trademarks as they look identical.
- Registered Trademark: Provides security to the registered trademark under India’s trademark registry. A petitioner must display goodwill, misrepresentation, and harm to their prestige to build a case.
- Class of Goods or Services: Illegal use of the trademark for the circulation of goods or services must fall under the similar class of unregistered trademark.
Indirect Infringement
- Vicarious Infringement: Under Section 114, a company and its accountable persons are responsible for the infringement unless acting in fairness and uninformed of it. Vicarious liability includes control, knowledge and financial gain.
- Contributory Infringement: When someone helps or supports a person who is breaking the law, knowing they are doing so, it is called contributory infringement.
Documents requirement for Trademark infringement
- Trademark Registration Certificate: Evidence of possession of the trademark.
- Evidence of Infringement: Examples include:
- Replicas of infringing products or advertisements
- Spectator Statements
- Professional Perspective
- Statement of Damages: An approximation of the financial damage caused by the infringement.
- Power of Attorney: A lawyer to act on behalf of the trademark owner.
Protections against Trademark infringement
- Fair Use:
Descriptive Fair Use: A trademark can be used to describe a product or service without infringing on it. Must be used honestly and not in a misleading manner.
Nominative Fair Use: Allows using a trademark to refer to the owner’s products or services, as long as it’s fair and not confusing. - Prior Use: If anyone used the trademark in a particular area before the possessor registered the trademark, they have a legitimate defense.
- Abandonment: If the trademark holder has stopped using the trademark for a prolonged period, it can be considered abandoned.
- Genericize: If a trademark is used widely that it’s no longer connected with a particular brand but with the general product/service, it may lose protection.
- Non-Infringement: If the use of the trademark doesn’t generate confusion among consumers, it doesn’t constitute infringement.
- Invalidity: The defendant may dispute the registration of the trademark itself, which might make it unenforceable.
How to Prevent Violations of Trademarks
- Conduct In-depth Research: Search before acquiring latest trademark to avoid conflicts with registered marks.
- Register Your Trademark: Legal registration makes it easier to uphold laws and protects from infringement.
- Monitor for Infringement: Keep an eye on market for misuse of your trademark and act quickly.
- Consult with an Attorney: Seek advice to safeguard your rights and adhere to regulations.
Conclusion
To secure your brand in the competitive market of India, understanding and preventing trademark infringement are important. Monitoring illegal use and consulting with legal professionals lead to securing your brand’s identity and value.
