What Is Infringement Of Trademark - LawyerINC

Every business entity has a peculiar trademark for differentiating itself from the other market players in the society. Trademark is very important as the consumers purchase their goods on the base of this. Therefore, it is essential to protect your trademark from infringement. If trademark infringement occurs, you might lose the goodwill created through many years of hard work.

In this blog, we talk about trademark infringement, legal framework and much more.

Infringement of trademark is the breach of exclusive rights of the registered trademark without seeking the permission of the trademark owner. If any unauthorised person uses the registered trademark in relation to similar goods and services are known as trademark infringement.

Section 29 of the Trademark Act, 1999 talks about trademark infringement. Any unauthorized use of identical or deceptively similar trademark in case of similar goods or services is called trademark infringement.

Following are few circumstances under which infringement occurs-

• If the trademark is very identical and deals with similar services and goods.

• It creates a confusing picture in the minds of the customers.

• If the similarity will cause unfair advantage or further harm the reputation of registered trademark.

• Lastly, if someone uses similar packaging without due authorisation.

The Supreme Court in Kaviraj Pandit Durga Dutt Sharma v. Navratna Pharmaceutical Laboratories held that burden of proof in case of infringement of trademark lies on the plaintiff. It is the duty of the plaintiff to establish that the trademark used by the defendant is similar to the one used by plaintiff which was already registered.

Trademark Infringement is a cognizable offence under the Trademark Act,1999. This means that the police complaint can be lodged in case of infringement, and the culprit can be directly prosecuted. Even the courts, in case of infringement, have the authority to suo moto conduct raids and seizure operation.

A civil action for infringement can also be taken against the infringer. There is no limitation period for filing a suit for infringement, as the offence is of continuing nature.

Section 30 of the Trademark Act, 1999 lays down the guidelines for understanding the trademark assignment. It helps the falsely projected infringer to use these as a defence in court.

Following conditions do not amount to trademark infringement in India-

1. If you use trademark as per the honest practices which is favourable in industrial or commercial matters

2. When you are not trying to have an inappropriate benefit or damage the distinctive character or reputation of the trademark already registered.

3. If you are using the mark for indicating things like time of production of goods, type, quality, or quality of products and intention, purpose, or value of products

4. If geographical origin of the goods

5. If your trademark doesn't come under the scope of registration. There are many cases when trademark registration is subjected to limitations. If the infringement comes under those limitations, then it doesn't lead to trademark Infringement.

6. When the trademark is used as the continuation of the permitted use granted by the original proprietor, for which the permission is not subsequently removed or obliterated.

7. If they use the trademarks for the related parts and accessories.

• One can avail of both civil and criminal remedies.

• Since it is cognizable offence, the court can suo moto conduct raids and seizure operations.

The infringement of trademark is a cognizable offence in India. One should avoid getting involved in trademark infringement. Therefore it is very important to get your trademark registered in time as a proper trademark search is done before registration to avoid any similarity with existing trademarks and trademark infringement.