Read and come along if you want to know about the Infringement of Trademark in India.
After submission of the trademark application, the trademark passes through several checks and the status of the application changes.
When the trademark status is "marked for exam", the examiner checks the mark for everything and generates the report.
So, if the mark is duplicated or copied the reason will be mentioned as an infringement with all the relevant details.
What is the Infringement of a Trademark?
Trademark infringement, in generic terms, is the unauthorized usage of a mark that is alike or deceptively similar to a registered trademark.
It means a breach of rights under the Trademark Act 1999.
Situations considering a person infringing the trademark:
The mark is deceptively similar or identical to the other mark, which has registration under the Trademark Act, 1999 and has a relation with the same line of goods and services.
The similar or identical mark creates confusion within the general public.
In advertising or, packaging the mark is used without any authorization by the registered trademark.
Types of Infringement of Trademark in India
1. Direct Infringement
2. Indirect Infringement
It is defined under section 29, which includes some elements for direct breach:
Use by any person who does not have authorization.
When the mark is identical or deceptively similar.
For only those whose line of goods and services are the same.
Unlike direct infringement, there is no provision in the Act that deals with indirect infringement specifically.
It does not mean that there is no liability for indirect infringement.
The principle and application of indirect infringement arise from the universal law principle. It holds accountable not only the principal infringer but also anyone that abets, induces that direct offender to infringe. Further, there are two types of indirect infringement:
Vicarious Liability: According to section 114, if a company commits any offence then except the person who is doing it in good faith will not be given punishment rest will be liable.
Elements of vicarious liability:
When one knows about infringement still performs and contributes.
When a person starts generating financial gains from infringement (not in the case of good faith or zero knowledge of infringement).
Contributory Infringement: Some primary elements for contributory infringements:
When the person,
Knows of the infringement.
Materially contributes to the direct infringement.
Induces the principal infringer to infringe.
In the case of contributory infringement, there is no exception as there exists no chance of the contributory infringer to act in good faith.
Legal Action and Remedies against Infringement of Trademarks in India
Civil and criminal action can come if the trademark is infringed.
The party complaining can file a criminal complaint as the Trademark Act, 1999 considers infringement as a cognizable offence.
It means a person can complain to the police, and the prosecution of the infringer can be done immediately and directly.
A suit depends upon the registration of a mark.
Remedies which court can give if infringements are successful with proof:
Injunction/stay against the usage of the trademark.
Handing over accounts and receipts.
Appointment of a local commissioner by the respective court for supervision or sealing of infringing material and accounts.
The court can even go up to the extent of giving injunctions and managing the custom authorities to withhold the infringing material from the transmission so that the proprietary interest of the owner gets safe.
An application under Order 39 rule 1 & 2 of CPC for grant of provisional or ad interim ex-parte injunction. Interim orders are usually ex-parte or the following notice.
It was the best information regarding the Infringement of a Trademark in India. If you need any more information, you can contact an expert while trademark registration online.
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