Trademark Infringement: Laws, Remedies, and Prevention

Shapes, logos, and taglines play an important role as they represent a brand. The name chosen for brand promotion shall not be similar but shall hold a unique identity. In order to protect these marks, values, logos, and other related marks, the concept of IPR emerged. Under IPR, there are different categories to protect different creations, and one of them is trademark.

However, there can be circumstances which can lead to infringement of trademark. The said blog explains about trademark infringement, remedies, types, and other required details which should be known by the applicant or owner of a trademark.

What is Trademark Infringement?

Trademark is a legal protection which protects names, marks, taglines, slogans, shapes of product, specific color of specific product, and other related matters. In India, rules regarding trademark are governed by the Trademark Act, 1999. Definition of trademark has been mentioned under Section 2 of the Trademark Act, 1999.

Infringement in general means the act of violation of someone’s rights. Together, it means when there is violation of rights regarding trademark. Section 29 under Trademark Act explains about acts leading to the infringement of trademark.

Elements for Trademark Infringement

• Trademark must be registered under Trademark Act, 1999.
• Marks should be similar in nature.
• Marks should create confusion between two brands.
• Use of trademark shall be unauthorized.
• There should be commercial use of the mark.

Types of Trademark Infringement

• Direct Infringement: When trademark used is similar or identical in nature then, the said infringement is direct.
• Indirect Infringement: This type of infringement happens when the trademark use is done indirectly by the other person.

Remedies for Trademark Infringement

Section 30 of Trademark Act, 1999 states about remedies regarding trademark infringement.

Civil Remedies

• Injunctions
• Damages
• Anton Piller Order (section 135 of the Trademark Act)
• Accounts of profit

Criminal Remedies

• Imprisonment given between 6 months to 3 years.
• Fine not less than Rs 50,000 which can be extended till Rs 2,00,000.

Common Examples of Trademark Infringement

• Similar packaging of products.
• Phonetically similar brands.
• Counterfeit products using a brand symbol.

Defenses for Trademark Infringement

• The mark used was unique and not similar.
• The mark creates no confusion.
• The trademark is not valid.
• The trademark is used in good faith.
• The trademark is generic and descriptive.

Prevention of Trademark Infringement

• Conducting proper trademark search.
• Trademark shall be unique and should not resemble with any existed trademark.
• Registers domain names and social media handles.
• Regular monitoring of database of trademark.
• Registration of trademark shall be done as it helps in creating legal evidence.

Importance of Trademark Registration

• It creates legal evidence for future reference.
• It helps in maintaining the good will of the brand.
• It provides exclusive legal rights to the creators.
• It makes enforcement easier.
• It helps in increasing of brand credibility.

Conclusion

Trademark infringement is an important concept which should be taken care off. Rules and regulations regarding trademark Infringement should be strictly followed. The applicant seeking trademark protection shall do a thorough trademark search. Remedies and punishments for trademark shall be implemented. Trademark Registration plays an important role when seeking for justice and hence registration shall not be neglected. Exclusive rights given to the applicant or owner shall not have mala fide intention.