Overview of Trademark Infringement
The Trademark Act, 1999 (referred to as the act after this) is the law that protects the trademark in India. The Act releases registrations, protection and rules dealing with punishment against violations about the trademark. The trademark is given the status of intellectual property worldwide. There are many organizations, both international and national, which try to protect intellectual qualities such as trademarks.
In India, organizations related to the conservation of trademarks are the Indian Patent Office administered by the Comptroller General of Patent, Design and Trademark. In simple terms, trademark violation is an unauthorized use of a mark that is similar or misleading the same as a registered trademark. Here the term equally means that when an average consumer sees the mark, he is likely to confuse it for the origin of goods or services.
When looking into trademark infringement, one must know that are two types of infringement
Direct infringement
Direct infringement is defined by Section 29 of the Act. There a few elements that have to be met for a direct breach to occur; they are as follows:
- Use by an unauthorized person – This means that violation of a trademark only happens when the mark is used by a person who is not authorized by the holder of the registered trademark. If the mark is used with the authorization of the holder of the registered trademark, it does not constitute infringement.
- Identical or deceptively similar – The trademark used by the unauthorized person needs to either be identical to that of the registered trademark or deceptively similar to it. The term ‘deceptively similar’ here only means that the common consumer ‘may’ be confused between the marks and may think of them being the same. The operational word here being ‘may’, it only needs to be proven that this is a possibility and does not require proof of actually happening. As long as there is a chance of misrecognition of the marks, it is enough for proving infringement.
- Registered trademark –The Act only extends protection to trademarks that have been registered with the trademark registry of India. In the case of breach of an unregistered mark, the common law of passing off is used to settle disputes. It is a tort law that is used where injury or damage is caused to the goodwill associated with the activities of another person or group of persons.
- Class of goods or services – For the infringement of the trademark. The unauthorized use of the mark has to be used for the propagation of goods or services that fall under the same class of the registered trademark.
Indirect infringement
Unlike direct infringement, there is no provision in the Act that deals with indirect infringement specifically. This does not mean that there is no liability for indirect infringement. The principle and application of indirect infringement arise from the universal law principle. It holds accountable not only the principal infringer but also anyone that abets, induces that direct offender to infringe. There are two types of indirect infringement:
- Vicarious liability – According to Section 114 of the Act, if a company commits an offence under this Act. Then the whole company will be liable. Therefore, not only the principal infringer but, every person responsible for the company will be liable for indirect infringement. Except for a person who acted in good faith and without knowledge of the infringement.
- The elements for vicarious liability are – When the person can control the activities of the principal infringer. When the person knows of the infringement and contributes to it. When a person may gain financially from the infringement. Then the company must have acted in good faith. An exception to a company’s vicarious liability for a breach is when it had no knowledge of the breach.
- Contributory infringement – There are only three basic elements to 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.
Documents required to obtain a Trademark Infringement
No such special document is required to select for trademark check services. Some basic paper needs Choose the type of trademark investigation and Collect the documents
FAQs About Trademark Infringement?
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