Trademark Infringement In India- It's Meanıng, Types And Remedıes

ABSTRACT

The world lies in twenty-first century the advance is taking place for the industries which in turn helping in the expansion of the intellectual property rights. Trademark one of the several aspects of the intellectual property right is one such requirement that have witnessed a high demand in future due to the fast maturing of the industrial sector. A Trademark symbolises any goods and services by an optic mark in the form of words colours numbers and symbols. Trademark registration by any person or business organization is not mandatory but such a registration provides for protection against any certain type of infringement. The legal propositions about the trademark have the aim to protect the interests of an owner of the trademark, which is an entity or an individual, and prevent consumers from fraudulent offers connected with goods and services produced by the holder of the trademark. Therefore, trademark protects the interest of the producer also the interest of the consumer.

INTRODUCTION

The law which governs and protects trademarks in India is the Trademark Act, 1999 and therefore we shall refer to this Act. This Act applies upon the rules concerning registration, protection and sanctions for infringement of trademarks. Trademarks are granted the status of Intellectual Property all over the world. In the present world, there are many international and national organisations that try to safeguard properties like trademarks.

In India the organisations that deals with the protection of trademarks are the Indian Patent Office administered by the Controller General pf Patents, Designs and Trademarks. In Layman's terms, trademark infringement means using a mark that is the same as or very close to the registered trademark. This means that when one looks at a mark, he/she will most likely be deceived regarding origin of goods or services to which the mark has been attached.

TYPES OF TRADEMARK INFRINGEMENT

When we talk about trademark infringement, we should know that there are two types of infringement:

1. DIRECT INFRINGEMENT

Direct infringement is described by Section-29 of the Act. There are few elements that have to be met for a direct breach to occur, they are as follows,

Use by an unauthorised person: This means that use of trademark can only be violating if the mark is being used by any person who is not authorized by the owner of the registered trademark. It is not unlawful to use mark with the permission of the owner of the registered trademark.

Identical or deceptively similar: The unauthorised person's use of the trademark has to be the same as the registered trademark or phonetically similar to it. Therefore, when used here 'deceptively similar' only means that the ordinary consumer may be confused between the marks and may think that they are the same. With the key word being 'may' here it only becomes necessary to establish that this is a possibility and not necessarily a certainty. It can be seen that PMSIA does not require recognition of the marks in all its aspects to be negated so as long as there is the possibility of misrecognition of the marks, it is sufficient for infringement.

Registered trademark: This means that under the Act, only trademark that has been lodged with the trademark registry of India are afforded protection. Where infringement of an unregistered mark is an issue, the common law of passing off is used to resolve conflicts. It is a tort law which apply when an injury or harm is given to the goodwill of the business activities of another individual or persons.

Class of goods or services: In the case of passing off the unauthorised use of the mark has to be used for the promotion or advertising of goods or services that belong to the same category of the trademark in question.

2. INDIRECT INFRINGEMENT

Pursuant to the Act, there is no specific category of indirect infringement as there is with direct infringement. This does not mean there is no liability for indirect infringement either. The principle and application of indirect infringement come from the universal principle of law. It makes liable not only the principal wrongdoer but also anyone who aids and coaches that direct violator to violate. The two types of indirect infringement are:

Vicarious liability: As section 114 of the Act states, where an offence is made under this Act, it is conceived that the Company itself has as well committed an offence. Hence, not only the principal infringer, but every person responsible for the company will be liable for indirect infringement of the patent unless the person can prove that he or she was without knowledge of the infringement and acted in good faith. The elements for vicarious liability are however, their vicarious liability on infringement is as follows- When the person has control over the activities of the principle infringer- When the person has knowledge of the infringement and participates in it- When the person may be financially benefited from the infringement if an organization has been vicariously liable for infringement, then it was in the situation when the organization has not acting in bad faith and was not aware of the infringement.

Contributory Infringement: There are only three fundamental conditions for contributory infringement- when the person knows of the infringement- When the person materially contributes to the direct infringement- When the person induces the principal infringer to commit infringement in the case of contributory infringement, there is no exception as there exists no chance of the contributory infringer to act in good faith.

THE REMEDIES AVAILABLE FOR TRADEMARK INFRINGEMENT

Remedies serve as a proof for violation of the registered as well as the unregistered trademarks. Initially, it serves as an action to start off the proceedings of infringement in a court of law and in the latter, it assists in passing off the infringement to the hands of common law. In India the legal provision that regulate remedies for infringement of trademarks is SECTION-29 and SECTION-30 of the Trade mark Act, 1999. The remedies, which are discussed below, are those which are implemented depending on the fact and circumstances of the case under consideration.

Civil Remedies

According to the Trade Marks Act,1999 there are some civil reliefs to be provided to the person whoever's trademark has being utilized. They are;

1. Injunction:

An injunction is defined as restraining one person from performing certain activity or action through the course of law, and regarding the trademark infringement, it imposes limited an individual from using the trademark in a prohibited manner. Through such a stay whether within a temporary or a permanent nature, the court affords protection to the person who holds the trademark.

2. Damages:

Compenses state with a view to restoring the loss that the owner of the trademark incurred due to trademark infringement. The fiscal value of financial loss or brand damage is regained under this remedy. The total of the damages would be recognized by the court when evaluating the actual and probable loss of the owner because of the infringement.

3. Custody of infringing materials:

Such remedy means that the Court of Law can compel the violator to display all the kinds of products or goods in relation to the brand name. In such circumstances, the Court may compel the authorities not to release the associated materials account, and destroy all such products. Where the trademark relates towards services, i.e., where a Service Mark has been infringed, the direction might be given to stop the rendering of services immediately by the infringer.

Criminal Remedies

The Trade Marks Act,1999 also enumerates few provisions that may be considered as criminal remedy for the infringement of the trademark as follows:

Section 103- Of the Act lays down the criminal remedy for the infringement of the trademark of any person or business which provides for a maximum of 6 months imprisonment extendible up to a period of 3years for violating the rights in trademarks.

Section 104-Of the Act also outlines measures that require to be provided as a measure against an infringement. The section provides for a penalty of fifty thousand rupees which may be increased up to an extent of two lakhs of any person if he is found to be violating the trademark rights.

Also, the punishment of trademark infringement is also stated in SECTION 105 of the same act.

A seizure of powers of the individual responsible for infringing could be conducted as a criminal measure for an effective treatment regarding the above provisions. Such Process that is performed by the police requires rational grounds for proving the infringement only.

Administrative remedies

Civil remedy, criminal remedy, and the administrative remedy are the remedies available for the infringement of the trademark. The remedies which are available under the palate of administration are provided below:

In relation to a mark which is identical with the original mark or deceptively similar thereto and which is capable of being defended under section-9[1] or 11 pf the Trade Mark Act, 1999. If such a situation comes, then investigations are conducted based on the examiner of trademark registration. A trademark opposition is always filed by a third party; thus, they will oppose the existing trademark in the trademark journals having the completion of the registration process.

2] Another form of conducting administrative remedy is through endorsement of the trademark offending which is already registered. This in a way eliminates confusion of trademarks.

3] Since the remedy is administrative the process is performed by monitoring the trade activity of goods embodying an infringed trademark. Consequently, this essay finds that hesitation is averted by restrictions on import as well as export of those goods which hear a trademark that is fraudulent in nature. These three methods of implementing administrative remedy are useful in most cases when preventing trademark imitation.

CONCLUSION

In India it can be clearly made out that every day there is a need for registration of Trademarks, which infers that people are getting aware of protecting their own products. Patent infringement has become the order of the day these days. While there are several remedies to address the above issues, few have been effectively put to practice as they should be. Lacks in every procedure being conducted to do away with infringement finally derogates the law in hand. Any kind of violation of any trademark brings negative repercussion to the individual or the entity which in turn reduce the brand value. With direct infringement one also encounters an indirect infringement. There are no sections concerning indirect infringement, nevertheless damages are provided regarding general law of torts. Therefore, it is needed a little bit of consciousness to those people to prevent them to suffer any kind of infringement on their own product and how to defeat it quickly with legal assistance.

REFRENCES:

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.