The main purpose of a trademark is to help people recognize the
source of a particular good or service. The source, in turn, helps
people determine the quality. Quality is what consumers usually
base their purchase decisions on. This is why a trademark is of
extreme importance in the economy. For the consumer, a trademark
reflects the source and quality of the goods or services.
This is also why it is very important to ensure that your
trademark is not being infringed upon. A trademark represents the
brand value of the trademark owner. Infringement of trademark
usually, causes a loss of finances and goodwill to the owner of the
infringed mark. It is always better to be vigilant and prevent
potential infringers from riding on the goodwill and reputation
that you established.
What does Infringement of Trademark mean?
Trademark infringement in India is defined under Section 29 of
the Trademarks Act, 1999. Simply put, when an unauthorized person
uses a trademark that is 'identical' or 'deceptively
similar' to a registered trademark, it is known as
Now, let us take a look at the constituent elements of
Infringement of trademark:
1. Unauthorized person – this means a person who
is not the owner or the licensee of the registered trademark.
2. 'Identical' or 'Deceptively similar
'– the test for determining whether marks are identical
or not is by determining whether there is a chance for a likelihood
of confusion among the public. If the consumers are likely to get
confused between the two marks then there is an infringement.
3. Registered Trademark – You can only infringe a
registered trademark. For an unregistered Trademark, the common law
concept of passing off will apply.
4. Goods/ Services – In order to establish
infringement even the goods/ services of the infringer must be
identical with or similar to the goods that the registered
Any unauthorized use of the exclusive statutory rights of a
registered trademark constitutes infringement.
The infringement explained above is direct infringement. There
is another aspect to trademark infringement in India, i.e. indirect
What is Indirect Infringement of a Trademark?
Indirect infringement is a common law principle that holds
accountable not only the direct infringers but also the people who
induce the direct infringers to commit the infringement. Indirect
infringement is also known as secondary liability has two
categories: contributory infringement and vicarious liability.
A person will be liable for contributory infringement in two
1. When a person knows of the infringement
2. When a person materially contributes or induces the direct
infringer to commit the infringement.
A person will be vicariously liable under the following
1.When the person has the ability to control the actions of the
2.When a person derives a financial benefit from the
3.When a person has knowledge of the infringement and
contributes to it.
Vicarious liability usually applies in the case of
employer-employee relationships and the like. This finds indirect
mention in section 114 of the Trademarks Act. According to this
section, if a company commits an offence under Act then every
person who is responsible for the company will be liable. Except a
person who acted in good faith and without knowledge of the
On the whole, indirect infringement occurs when a person, though
not infringing directly, causes another person to infringe on a
With the growth in the e-commerce industry liability for
indirect infringement is extremely important as holds every
involved person accountable.
Thus, whether direct or indirect, any form of trademark
infringement in India can attract liability. To avoid infringement
of trademarks, you contact our trademark experts to get a
consultation before launching your brand or product.
Trademark Infringement in India – At a Glance:
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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