Trade Mark Infringement in India

1 like

Please login to like this article.

What is Trademark Infringement

In India, trademarks are protected by the Trademarks Act, 1999 (hence referred to as the Act). The Act establishes the laws governing trademark registration, protection, and penalties for infringement. Trademarks are treated as intellectual property all around the world. There are numerous international and national organizations that work to safeguard intellectual property such as trademarks.

The Indian Patent Office, which is overseen by the Controller General of Patents, Designs, and Trademarks, is in charge of trademark protection in India. In simple terms, trademark infringement occurs when a mark is used that is identical or deceptively similar to a registered trademark without permission. When an average consumer looks at the mark, it is likely to confuse him or her as to the origin of the goods or services.

Types of Trademark Infringement
When investigating trademark infringement, it's important to understand that there are two categories of infringement:
1. Direct Infringement
Section 29 of the Act defines direct infringement. There are a few requirements for a direct breach to occur, and they are as follows:

Use by someone who isn't supposed to be there: This means that a trademark is only infringed upon when it is utilized by someone who is not authorized by the registered trademark owners. It is not considered infringement if the mark is utilized with the permission of the registered trademark proprietor.
Identical or deceptively similar: The unauthorised person's trademark must be either identical to or deceptively similar to the registered trademark. The word "deceptively similar" simply suggests that the average customer may be confused by the marks and mistake them for one another. Because the key word here is ?may,' it only has to be demonstrated that this is a possibility, not that it will actually happen. It is sufficient to prove infringement if there is a likelihood of misrecognition of the marks.
Registered trademark: The Act only protects trademarks that have been registered with India's trademark registrar. The common law of passing off is utilized to resolve disputes when an unregistered mark is violated. It is a tort law that is applied when a person or group of people suffers hurt or damage to their goodwill as a result of their actions.
Goods or services of the following types: In order to be considered a trademark infringement, the unauthorised use of the mark must be for the promotion of products or services that are in the same class as the registered brand.

2. Indirect Infringement

In contrast to direct infringement, there is no specific provision in the Act dealing with indirect infringement. This isn't to say that there's no risk of indirect infringement. The universal law principle underpins the concept and implementation of indirect infringement. It holds not just the primary infringement liable, but also anybody who aids or inspires that direct criminal to infringe. Indirect violation can be divided into two categories:

Vicarious liability: Under Section 114 of the Act, if a firm commits a violation of the Act, the entire company is accountable. As a result, everyone accountable for the company, not only the lead infringer, will be liable for indirect infringement, with the exception of someone who acts in good faith and without knowledge of the infringement. When a person has control over the activities of the major infringer, when the person is aware of the infringement and contributes to it, and when the person may profit financially from the infringement, vicarious responsibility exists.
Contributory infringement: Contributory infringement is made up of only three elements: - When the person is aware of the infringement ? When the person contributes meaningfully to the direct infringement ? When the person persuades the major infringer to commit the infringement There is no exception in the situation of contributory infringement since the contributing infringer has no prospect of acting in good faith.