What is Trademark Infringement? 

Penalty for Trademark infringement in India

The Trademark Act of 1999 (hereinafter referred to as the same law) is a law that protects Indian trademarks. The law provides rules regarding the registration, protection, and penalties for trademark infringement. Trademarks are given the status of intellectual property rights around the world. There are many international and national organizations that strive to protect intellectual property such as trademarks.   

In India, the organization dealing with trademark protection is the Indian Patent Office, which is managed by the Directorate General of Patents, Designs, and Trademarks. Simply put, trademark infringement is the misuse of a trademark that is the same as or seemingly similar to a registered trademark. The term seemingly similar here means that when the average consumer sees a mark, they are likely to be confused about the source of the goods or services.

Types of Trademark Infringement 

When talking about trademark infringement, it is important to know that there are two types of infringement. 

1. Direct Infringement 

Direct infringement is defined in section 29 of the Act. There are some factors that need to be met in order for a direct violation to occur. They are: 

Use by Unauthorized Persons: 

This means that trademark infringement will only occur if the trademark is used by an unauthorized person by the owner of the registered trademark. It is not an infringement if used with the permission of the registered trademark owner. 

Identical or Deceptively Similar: 

A trademark used by an unauthorized person must be identical or deceptively similar to a registered trademark. The term “deceptively similar” here only means that ordinary consumers can be “confident” between the marks and consider them the same. The valid word here is “may”, so we only need to show that this is possible, not what actually happens. This is sufficient to prove infringement, as long as Mark can be misunderstood. 

Registered Trademarks: 

The Act extends protection only to trademarks registered in the Indian Trademark Register. In the event of an unregistered trademark infringement, common law fraudulent use will be used to resolve the dispute. This is a tort law used when injuring or damaging goodwill associated with the activities of another person or group of people. 

Class of goods or services: 

In the case of trademark infringement, you must use the unauthorized use of the trademark to spread the goods or services that fall under the registered trademark of the same class.

2. Indirect Infringement 

Unlike direct infringement, there are no legal provisions to specifically deal with indirect infringement. This does not mean that liability for indirect infringement is excluded. The principles and applications of indirect infringement derive from universal legal principles. It is responsible not only for the major criminals but also for those who support and induce injuries to their immediate criminals. There are two types of indirect injuries. 

Vicarious Liability:

Under section 114 of the Act, if a company commits a crime under this Act,  the entire company will be liable. Therefore, all responsible persons of the company, not just the main infringer, are liable for indirect infringement, except for those who have no knowledge of infringement in good faith. The elements of the agent’s liability are: If a person can control the activities of the main infringer-if a person knows and contributes to the infringement-if a person can benefit financially from the infringement The only exception to the company’s agent liability is A violation Occurs when the company acts in good faith and is unaware of the breach. 

Contributory Infringement:

There are only three basic elements of Contribution infringement. If a person knows about an infringement-if it contributes significantly to the direct infringement-if the primary infringer is infringement in the case of a contributing injury, there is no exception because the co-infringer does not have the opportunity to act in good faith. 

Penalties for Trademark Infringement 

Penalty for Trademark infringement in India

In India, trademark infringement is a cognizable offense, which means that infringers may face criminal liability as well as civil liability. Also, under Indian law, you do not need to register a trademark to initiate civil or criminal proceedings. As already mentioned, this is due to the common law principle of misrepresentation. In the event of a trademark infringement, the court may provide the following remedies: 

  • Temporary injunction
  • Permanent injunction
  • Damage 
  • Profit settlement (compensation for damages of profit due to the infringement) 
  • Destruction of goods using the infringement mark 
  • Proceedings costs  

In the case of a criminal procedure, the court will determine the following penalties: 

  • Imprisonment for at least 6 months, can be extended to 3 years
  • Fines over 50,000 rupees can be extended to Rs 2 lakh