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
Here are the types for the trademark infringement
Direct Infringement
Unauthorized Use: This type of trademark 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 one and the registered trademark are identical, or if consumers become puzzled between the trademarks as they look identical.
Registered Trademark: This act 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.
- Court Filing Fees: Fees required to start the lawsuit.
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Protections against Trademark infringement
- Fair Use:
Descriptive Fair Use: A trademark can be used to describe a product or service without infringing on it. Make sure to use it with honesty and virtue rather than 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 against infringement in that particular area.
- Abandonment: When the trademark holder has stopped using the trademark for a prolonged period, it can be considered as abandoned results into use of it without the violation.
- Genericize: If any trademark is used widely that’s no longer connected with a particular brand but rather the general product or service classification, it may forfeit its trademark protection.
- Non-Infringement: The alleged party may argue that their use of the trademark does not generate any confusion among consumers and therefore does not constitute any infringement.
- Invalidity: The defendant may dispute the registration of the trademark itself, which might make it unenforceable.
How to Prevent Violations of Trademarks
1.Conduct In-depth Research: Before acquiring the latest trademark, make sure to search it well so any conflicts may be resolved for the existing registered trademark.
2.Register Your Trademark: Getting legal registration makes it easier to uphold laws and protects you from infringement.
3.Monitor for Infringement: Keep an eye on the market to see if your name is being used without your permission, and move quickly to stop any violations.
4.Consult with an Attorney: Seek advice from our knowledgeable trademark attorney to safeguard your rights and adhere to trademark 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.
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FAQ’s
When someone uses a mark that is the same as or very close to a registered one and makes people confused, that person has violated a trademark. It’s not allowed.
There are two main types: direct infringement (using a mark without permission, or using one that’s identical or confusingly similar) and indirect infringement (helping someone infringe or being responsible for it as a company).
Any company and its people are accountable for the infringement, even if they didn’t know about it but acted reasonably. It includes control, detailed information, and financial gain.
You’ll need the trademark registration certificate, proof of infringement (like copies of fake products or ads), a statement of financial losses, a power of attorney, and court filing fees.
Defenses include fair use (descriptive or nominative), prior use in a specific area, abandonment (if the trademark hasn’t been used for a long time), genericize (if the mark becomes a common term), non-infringement (no consumer confusion), and challenging the trademark’s validity.
Do thorough research before registering a trademark, officially register it, keep an eye out for unauthorized use, and get legal advice when needed.
Descriptive fair use means you can use a trademark to describe a product or service as long as you’re honest and not misleading.
The Indian Patent Office, run by the Controller General of Patents, Designs, and Trademarks, handles trademark registration and protection in India.