Trademark infringement is the unauthorised use of a registered trademark. It's important to understand that trademark infringement doesn't just occur when someone uses your company's name or logo.
You can be accused of infringing someone else's trademark by using any one of the following:
What is a Trademark
A trademark is a word, phrase, symbol or design, or a combination of these elements that identifies and distinguishes the source of the goods of one party from those of others.
Therefore, a trademark not only identifies the source but also guarantees quality.
Trademarks can be made up of words (e.g., Xerox), letters (e.g., W for Walkman), numbers (e.g., 3M), designs such as logos and product shapes such as Coca-Cola bottles.
What is meant by Trademark Infringement?
- Trademark Infringement is a legal term that refers to the unauthorised use of a trademark. It occurs when someone uses a trademark without the permission of its owner and may confuse customers about the source, sponsorship or affiliation of products or services.
- Trademark infringement is a violation of law, as it is unfair competition. This means that it falls under criminal law since businesses can suffer great losses due to such infringements.
- A trademark owner may sue for damages and other remedies if they find any person infringing on their mark rights or causing them to lose profits through such an act.
INFRINGEMENT OF TRADEMARK
Infringement of a trademark is a violation of the trademark owner's rights to prevent others from using the same or similar marks on the same or similar goods.
It is a form of intellectual property infringement. It occurs when one party uses a trademark owned by another in a manner likely to cause confusion among consumers,
Who may mistakenly believe that the unauthorised product or service is produced by, sponsored by, or otherwise connected with the trademark owner.
Types of Trademark Infringement
There are five types of trademark infringement. The first is direct infringement, which occurs when someone uses an identical or substantially similar mark on the same goods or services as the original trademark.
The second type of trademark infringement is indirect infringement. This occurs when someone uses a confusingly similar mark on related goods or services in such a way as to create confusion with the original trademark.
That confusion causes injury to the economic value of the original mark. A third type of trademark infringement is committed by a third party who chooses to use a confusingly similar mark even though they're not directly competing against your business or committing direct infringement against your company's product lines.
Indirect infringers include those who buy products from companies that have been sued for infringing on another's trademarks, sell these products under their own name and label them incorrectly as being "genuine" versions of what they actually are (and therefore implying that they're legitimate).
An example would be if Nike were suing Skechers over using their logo design on one pair of shoes.
Still, then some other company bought up all those same shoes from Skechers after the lawsuit was settled, re-branded and sold them themselves without any advertising whatsoever about where they came from originally;
this would be considered indirect infringement since it wasn't done directly by either Nike or Skechers themselves but instead by some third party who took advantage of their lack thereof once things had already been settled out between both parties involved in litigation over this issue."
Direct Infringement
Direct infringement means that a person is using the trademark without permission from the registered owner of the trademark.
This is considered a criminal offence under The Trademark Act, 1999, and can lead to imprisonment or a fine upto Rs 5 lakhs or both.
What is Direct Infringement?
Direct infringement includes:
- Using another’s registered trademark for identical or similar goods in any part of India;
- Where an unauthorised person makes such use;
- If there exists any likelihood of confusion in the minds of ordinary persons between such marks;
Identical or deceptively similar trademarks are those whose own distinctiveness has been removed from consumers through extensive commercial usage.
For example, if you adopt 'COLA' into 'COLLA' for your soft drink products, then it would be considered a direct infringement by Coca-Cola Company (because it is exactly the same as their existing product).
For this reason, it is very important to conduct proper research before starting up new businesses under any name/logo which may conflict with someone else's trademark rights!
Indirect infringement
Indirect infringement is the act of inducing or contributing to an infringement.
Inducement may be by selling goods for importation into India with the knowledge that they are likely to be imported as counterfeit or copied goods and sold in India as genuine;
or by advertising them for sale in a way which indicates that they are genuine and thereby intending that they should be sold as such.
Contributory liability arises when a party knows about another's infringing activity and has the power to stop it but does not take action.
The courts have laid down the following test:
A person can be held liable for indirect infringement if he
(i) intentionally induces another person(s), whether directly or indirectly, to infringe;
(ii) knowingly receives an infringing service from another person(s);
(iii) enters into an arrangement with one or more persons regarding activities of common interest including facilitating specific acts of direct infringement;
(iv) acquires an ownership interest in all assets used directly or indirectly in providing services that result in direct infringement;
(v) contributes materially without claiming any right against those services which resulted directly infringe on another party's rights; and/or
(vi) conspires with one or more persons who commit acts of violation for any purpose including commercial advantage or financial gain.
When Can One Be Cited for Infringement?
A trademark is a word, phrase, symbol or design that identifies and distinguishes the source of the goods of one party from those of others. It may be registered with the Indian Trademark Office.
Trademark infringement occurs when a person uses another's trade mark in relation to identical or similar goods/services in such a way as to confuse consumers as to its source.
A person can also be cited for trademark infringement if he uses someone else's trade mark on similar but not identical goods/services. Nevertheless, it will lead to confusion among consumers as to its source.
How to Prove Infringement?
It takes work to prove trademark infringement. The person who claims that their trademark has been infringed may need to provide evidence in order to prove it.
For example, suppose someone is selling products similar to yours under your registered trademark, and you want them to stop selling these products.
In that case, you will have first to show that there is a likelihood of confusion between the two sets of goods and services offered by you versus those offered by the other party. If so, it can be said that infringement has taken place.
The type of evidence required depends on several factors, including whether or not an actual lawsuit has been filed against the alleged infringing party.
In some cases involving more complex issues such as determining the intent behind the use of similar trademarks and where one might have superior rights over another's trademark (e.,g., US vs India), expert testimony from experienced attorneys may be required before making any legal decisions about protecting one's intellectual property rights (IPR).
Penalties for Infringement
The court may order the infringing party to pay damages to the trademark owner. The court may also order the infringing party to pay the owner of the trademark attorney's fees.
The court may also order that an interim injunction should be issued against such use and sale of goods or services which are likely to cause confusion as to source, affiliation, sponsorship or approval by using this mark by any means whatsoever, including print media, website and social media.
The trademark owner can file a criminal complaint against someone who is using his/her registered trademark without permission and also he/she has the right under Section 66-A of the Trademark Act 1999 to sue for infringement in civil court but there is no provision in this regard under any law so far so if you want protection then it's better if you register your trademark before starting a business with it otherwise there won't be any remedy available due legal complications related thereto.
If you are interested in registering your trademark, then it's better to consult a lawyer so that he can guide you properly and give the right advice.
If you have any confusion regarding this matter, please leave a comment below, and we will get back to you as soon as possible.
Consequences for Infringement of Trademark
If a person is found to be infringing on another's trademark, he or she can be punished by way of a civil and criminal case.
- Civil Cases: The first step towards protecting your trademark is filing a civil case against the infringer. The court may order that all infringing products are destroyed and that the offender pays damages to the victim. In addition, if you feel threatened by an infringer, you can also ask for an order of injunction against them, which would keep them from continuing their activity until they resolve this issue through negotiations with you. Otherwise, they will end up facing criminal charges as well.
- Criminal Cases: If someone continues to use your trademark in any way despite being warned, then this constitutes infringement and you should file a complaint against him/her under section 52(1)(i) which states: "Whoever sells goods having applied any mark upon them which was likely to cause confusion with respect to such sale; or makes use of any trade mark on goods so as not only knowingly but also willfully leads people into error about its source; shall be punished with imprisonment up to five years, or fine up to one lakh rupees."
Read more,
Benefits of Trademark Registration in India
Indian Trademark Registration for Foreigners
Process of Trademark Ownership Transfer in India
Conclusion
From the above, it is clear that trademark infringement is a serious issue that can greatly impact companies and individuals.
Suppose you have any doubts about whether or not your business is infringing on another company's trademarked name or logo.
In that case, we recommend seeking legal advice from a qualified attorney before proceeding.
FAQs Related To Trademark Infringement In India
1. What is a Trademark?
A trademark is a name, word, phrase or logo identifying the goods or services' source. It may also be used to identify such features as quality and reputation. It can be registered with the Indian Patent Office under Section 9 of the Trademark Act, 1999. A trademark registration gives you exclusive rights over your brand in India, allowing you to sue others who use similar signs without permission.
2. What is meant by Trademark Infringement?
This means using someone else's mark on your goods or services without their consent in a way that would lead people to believe they are connected with one another when they are not related at all. For example, suppose someone sold bags with your logo on them without permission (or even if it's an unofficial knockoff). In that case, this could be considered infringement because people might mistake those bags for yours – thus leading them to buy something which isn't actually yours!
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