Answer ... The remedies available against trademark infringement are as follows:
- damages caused to the trademark owner, including lost profits or the profits unjustly made by the defendant; and
- any other remedy that the court may deem fit, including an order for the destruction of infringing good and an order for the transfer of infringing goods to the trademark owner.
Anton Piller type orders are also applicable in interlocutory proceedings.
Answer ... A court may grant any of the aforementioned remedies against dilution within the framework of protection of well-known trademarks under the Trademark Ordinance. However, the only available remedy for infringement of a non-registered well-known trademark is an injunction. Otherwise, no explicit provisions of law relate to dilution, although the Chattels Law and Unjust Enrichment Law might be applicable for protection from certain forms of trademark dilution and unfair competition. The Chattels Law provides for an injunction, whereas the Unjust Enrichment Law entitles the plaintiff to defendant’s profits.
Answer ... Not explicitly.
Answer ... It is customary, but not obligatory, to send a cease and desist letter prior to filing a lawsuit. If the infringement continues, the trademark owner may bring an infringement action in court. This action will involve:
- submission of pleadings;
- preliminary procedures;
- submission of evidence (in the form of affidavits and possibly expert opinions, especially when surveys are adduced);
- oral hearings for cross-examination of the affiants; and
- summations (written or oral).
Answer ... A defendant in a trademark litigation will commonly raise the following defences:
- lack of similarity between the marks;
- invalidity of the trademark due to descriptiveness and/or non-distinctiveness;
- common law rights acquired through the defendant’s adoption and use of the mark in good faith; and
- lack of good faith in obtaining registration.
The defendant may also raise equitable arguments, such as laches, estoppel, acquiescence and/or waiver, especially in interlocutory proceedings.
Answer ... Judgment in a trademark infringement case will usually be given in a district court as a court of first instance. In such cases, the judgment may be appealed to the Supreme Court by right.