A trademark is a legally protected symbol, name, or expression used to identify products or services. Once registered with the Controller General of Patents, Designs & Trademarks (CGPDTM), a trademark is legally protected, which means the owner of the mark is eligible to avail legal protection against any sort of trademark infringement. Infringement thus means, in this context, the unauthorised use of an established mark that is likely to cause confusion or deception about the source of a good or service.
The courts test infringement of trademarks by evaluating if an infringement is a case of
- A close similarity of a mark that is associated with products and/or services of a prior registered trademark and is related to those products and/or services.
- The use of a mark/logo that could possibly create confusion among the general public due to its similarity with a previously registered trademark.
A trademark infringement takes place when a trademark used by an individual or organization is similar to the registered trademark rights of another individual or organization in the jurisdiction. In order to prove trademark infringement, the registered trademark owner would be well served if they were able to produce any relevant proof that the trademark infringer is a competitor with comparable products or services.
There are primarily three types of trademark infringement:
- Application of False Trademark
To be involved in any type of process in manufacturing, processing or packaging of products or services with an unauthorized trademark.
- Distributing of Products with False Trademark
By selling or dealing in any products or services that have a false or unauthorized trademark.
- False Claim of Trademark Registration
Claiming a trademark which is falsely registered.
The relief that a court could or usually grants in a suit for infringement or illegal and unauthorised use of a trademark includes permanent and interim injunction, damages or account of profits, delivery of the infringing goods for destruction, and cost of the legal proceedings.
The order of interim injunction could be made ex parte or with notice.
Unauthorized Use of Trademark
Under the law, fines and/or imprisonment could be applicable for any individual who is adjudged to be illegally using a registered trademark or falsifying a registered trademark.
Now, an individual is said to be using an unauthorized trademark if:
- They, without the express and written permission of the proprietor of the trademark utilises either that trademark or one that is deceptively similar; or if
- They, either deliberately or accidentally, falsify a genuine trademark by alteration, effacement, addition, or in any other way.
On the other hand, the inappropriate use of a trademark is deemed to be taking place if they apply any kind of trademark or a dishonestly similar trademark to products or services without the proper consent of the registered trademark owner.
Penalty for Selling Products or Services with an Unauthorized Trademark
An individual is considered to be illegally utilising a trademark if they:
- Falsify any trademark.
- Maliciously apply someone else’s trademark to their own products or services.
- Produce, dispose of, or have in their possession any dye, block, machine, or any other instrument for the sole purpose of falsifying a trademark.
- Apply of any incorrect trade descriptions to products or services.
- In any way tamper with or alter any mark that is an indication of the original mark that is applied to any other product.
In case of any of the above offences, an individual is punishable with imprisonment for a minimum period of six months that could also extend to three years with an additional fine that shall not be less than fifty thousand rupees, but which may extend to two lakh rupees.
In some cases, even applying for a trademark could be deemed illegal if there is found to be any malicious intent behind the action. However, that individual could be safe from punishment if they prove:
- They have taken all possible precautions against committing an offence and, while committing the offence, they were not aware of the original and had no reason to suspect the genuineness of the trademark applied for;
- In accordance with the law and on behalf of the prosecuting authorities, they shall hand over all the information in their possession or within their access with regard to the person from whom they obtained any such products or services; or
- That they otherwise had acted innocently.
Penalty for Incorrectly Representing a Trademark as Registered
If an individual for any reason falsely represents an unregistered trademark as registered with regard to any products or services, then they are punishable by law with imprisonment for a term that may extend to three years, or with a fine, or both.
For trademark-related enquiries, you should get in touch with Vakilsearch.
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