Trademark infringement has become one of the concerns going ahead in the age of technological advancements for newer businesses. This generally happens when a person is unaware of the legal formalities or necessities of how to apply for trademark registrations In India. It is thus important to know what is trademark infringement and how can one go about dealing with it.
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India is a country with a mixed market system where the majority of the business operates on an open market basis. The initial years of a company are spent in building the brand and reputation around the product. It is thus important to build a better trademark application and take the effort in protecting the brand from Trademark Infringement.
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The blog aims to address the important elements such as:
- Trademark Infringement
- Types of Trademark Infringement
- Cases of Trademark Infringement
- Penalties for Trademark Infringement
- How can Trademark Infringement be prevented?
What is Trademark Infringement?
Trademark Registration is an important element in the formation of any business and it is of utmost importance to protect the trademark from others. Businesses in India are protected from the Trademark Infringement under the Trademarks Act, 1999. The act helps deal with the registration, protection, and penalty for infringements. As it is an intangible element it falls under the control of the Intelectual Property.
A Trademark Infringement is the unauthorized use of a trademark that is already in use by someone else in the market. It generally happens when the person tries to confuse the buyer with a similar representation of the product. It aims to curb the practices of unethical means to benefit from the name of reputed brands.
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What are the types of Trademark Infringement?
Trademark Infringement is of two distinct types, the direct and the Indirect. A better understanding of the different types of Infringement can be understood from the list below. They are as follows:
1. Direct infringement: These Infringements are done when the individual uses the exclusive rights of the trademark owner without their permission. Under the Direct Infringements, we have several types of infringements, namely
- Unauthorized access: These are unauthorized use of the trademark by an individual without permission. It is considered trademark infringement when a trademark is used by someone not authorized by the registered trademark owners.
- Identical or deceptively similar: These occur when the trademark is somewhat similar to create confusion among the customers.
- Registered trademark: this infringement occurs when the companies have been registered even when another company with a similar name exists.
- Class of goods or services: This happens when the trademark is used for the promotion of products in a similar category as that of the owner without their permission.
2. Indirect infringement: This type of infringement does not have any specific law against it but it is still unethical to do and is thus condemned upon. Indirect Infringement is of two distinct types. They are as follows:
- Contributory infringement: This infringement happens when the person is unaware of the cause of the infringement. It can also be done when the person contributes willingly to the infringement.
- Vicarious liability: This happens when the person is able to control the acts of infringement. It can also be done when there is gain from the infringement. This is also possible when the person contributing to the infringement is aware of it.
- Indirect infringement can also happen when the entire company is liable for the infringement caused even if one does not contribute to it. Being a part of the organization makes their act part of the infringement. When someone acts out of good faith and without proper knowledge of the infringement they are exempted.
Important Cases of Trademark Infringement
Trademark Infringement is one of the main issues that every upcoming business faces as there are thousands of companies with similar products. To stand out is one of the most problematic issues and selecting a trademark for the identity of the product. They often end up encroaching on others’ ideas unintentionally.
Some of the major Trademark Infringement cases are that of:
- A case was filed in the Federal Court of Canada by Amul Dairy, the Kaira District Cooperative Milk Producers Union, and AMUL brand of the Gujarat Cooperative Milk Marketing Foundation (GCMMF). The case was against Amul Canada along with four other companies. The case was regarding the duplication of the brand logo and trademark for their business.
- Starbucks vs Sardarbuksh was another case of infringement where the name and products of the businesses matched causing problems. The Reputed brand of Starbucks filed a case against Sardarbuksh and resulted in the court ruling Sardarbuksh to stop using the name.
These are few among the many other cases of trademark infringement that have caused difficulties for established businesses.
Penalities for Trademark Infringement
Trademark Infringement is seen as a serious offense in India and one can face both criminal and civil prosecution under the law. This comes under the concept of passing off one’s idea as another’s. This is an unethical practice and the penalties for such offense are as follows:
- There can be a temporary injunction of the business.
- There can be a Permanent injunction of the business.
- One may need to compensate for the damages caused.
- Show cause for the destruction of goods using the infringement mark
- Provide the cost for the legal proceeding incurred by the filing company.
In case of a criminal act, the following can be imposed upon the defendant:
- An Imprisonment sentence for six months to three years.
- A monetary penalty of Rs 50,000 to Rs 2 lakh can be imposed.
How can Trademark Infringement be prevented?
To prevent the cause of trademark infringement in India one can follow a few basic steps to make sure of their Trademark Registration. Some of the important steps to prevent Trademark Infringement are as follows:
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- Understanding of the Trademark: One needs to have an understanding of the concept of Trademark Registration and be aware of the various trademarks both registered and unregistered.
- Research: One has to always do thorough research before filing for any trademark registration. Doing so will help reduce the chance of rejection or trademark infringement.
- Hire a lawyer: One has to be sure and file for trademark registration in the correct manner and so having a trademark lawyer reduces the chances of trademark Infringement significantly.
- Never too late: One can often find themselves stitch in a position where their business idea clashes with a competitor’s late into the process, It is never too late to make the necessary changes and proceed accordingly.
- Trademark is not just a name: A trademark is never done for the sake of its name, but rather for the value it holds in reference to the product.
- Assumptions: Never go for a trademark registration based on the assumption but rather have evidence for the process to avoid trademark infringement.
- Liabilities: One should always consider the liabilities of having a trademark and how it impacts the brand. It is always beneficial to have general liability insurance to help in case of a trademark infringement.
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