Trademark Infringement In India

India, being a mixed market, has a diverse range of sectors that function on a free-market basis. The competition within the market system is extreme. For any enterprise to thrive within the open market, they need to form brand recognition and brand value. the best way through which this can be achieved is via trademarks.

The need for trademarks is considered a three-prong approach to represent goods or services by:

  • Helping consumers recognize the source
  • Helping consumers determine the standard
  • Helping consumers make a purchasing decision

One such value is attached to the trademark, it’s imperative to shield it from misuse and infringement by others.

What Is Trademark Infringement

The Trademarks Act, 1999 (hereinafter mentioned because the Act) is the legislation that protects trademarks in India. The Act lays down the foundations addressing registration, protection, and penalties against infringement regarding trademarks. Trademarks are given the status of material possession across the world. There are many organizations, both international and national, that endeavour to guard intellectual properties like trademarks.

In India, the organization that deals with the protection of trademarks is the Indian government agency administered by the Controller General of Patents, Designs, and Trademarks. In simple words, trademark infringement is the unauthorized usage of a mark that’s identical or deceptively the same as a registered trademark. The term deceptively similar here implies that when a median consumer looks at the mark, it’s likely to confuse him/her about the origin of the products or services.

Types Of Trademark Infringement

Trademark Infringement In India

When looking into trademark infringement, one must know that are two varieties of infringement:

1. Direct Infringement

Section 29 of the Act defines direct infringement. There are some elements that must be met for an instantaneous breach to occur; they’re as follows:

  • Use by an unauthorized person: this suggests that violation of a trademark only happens when the mark is employed by an individual who isn’t authorized by the holder of the registered trademark. If the mark is employed with the authorization of the holder of the registered trademark, it doesn’t constitute infringement.
  • Identical or deceptively similar: The trademark utilized by the unauthorized person must either be the image of that of the registered trademark or deceptively just like it. The term ‘deceptively similar’ here only means the common consumer ‘may’ be confused between the marks and should think about them being identical. The operational word here being ‘may’, it only has to be proven that this can be a clear stage and doesn’t require proof of truly happening. As long as there’s an opportunity for misrecognition of the marks, it’s enough for proving infringement.
  • Registered trademark: The Act only extends protection to trademarks that are registered with the trademark registry of India. In the case of breach of an unregistered mark, the common law of passing off is employed to settle disputes. it’s a tort law that’s used where injury or damage is caused to the goodwill related to the activities of another person or group of persons.
  • Class of products or services: For the infringement of the trademark, the unauthorized use of the mark must be used for the propagation of products or services that be the identical class of the registered trademark.

2. Indirect Infringement

Unlike direct infringement, no provision within the Act deals with indirect infringement specifically. This doesn’t mean that there’s no liability for indirect infringement. The universal law principle underpins the concept and implementation of indirect violation. It holds not just the primary infringement liable, but also anybody who aids or inspires that direct criminal to infringe. There are two sorts of indirect infringement:

  • Vicarious liability: in step with Section 114 of the Act, if an organization commits an offense under this Act, then the full company is going to be liable. Therefore not only the principal infringer but, everybody chargeable for the corporate is to blame for indirect infringement, apart from an individual who acted in straightness and without knowledge of the infringement. the weather for vicarious liability is:- When the person can control the activities of the principal infringer – When the person knows of the infringement and contributes to that – When the person may derive financial gains from the infringement the sole exception to vicarious liability of a corporation for infringement is when the corporate has acted in honestness and had no idea about the infringement.
  • Contributory infringement: There are only three basic elements of 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 infringe within the case of contributory infringement, there’s no exception as there exists no chance of the contributory infringer to act in straightness.

Penalties For Trademark Infringement

In India, the infringement of a trademark may be a cognizable offence which suggests that the infringer may face criminal charges together with civil charges. it’s also not required by Indian law for the trademark to be registered for the institution of civil or criminal proceedings. As mentioned before this is often thanks to the common law principle of passing off. within the case of trademark infringement, the court may award the subsequent remedies:

  1. Temporary injunction
  2. Permanent injunction
  3. Damages
  4. Account of profits (damages within the amount of the profits gained from the infringement)
  5. Destruction of products using the infringing mark
  6. Cost of legal proceedings