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Published : November 25, 2014 | Author : Radhika Shukla
Category : Intellectual Property | Total Views : 16688 | Rating :

  
Radhika Shukla
Bangalore Institute of Legal Studies
 

Trademark Infringement and Remedies

A trademark is a symbol in the form of a word. It is a device or a label which is applied to articles of commerce with a view to stipulate the customers that the particular article is a good manufactured or otherwise dealt in by a particular person as distinguished from similar goods manufactured or dealt by other persons. A trademark identifies the product of its origin and guarantees of its unchanged quality. A trademark advertises the product and distinguishes it from others. A trademark is a word, phrase, symbol or design, or combination of words, phrases, symbols or designs is used in the course of trade which identifies and distinguishes the source of the goods or services of one enterprise from those of others. A trademark is different from a copyright or a patent or geographical indication. A copyright protects an original artistic or literary work; a patent protects an invention whereas a geographical indication is used to identify goods having special characteristics originating from a definite territory.

Almost all jurisdictions including India employ a classification system in which goods and services have been grouped into classes for registration. Most countries follow the same classification system, namely the International Classification of Goods and Services, which consists of 34 classes of goods and 8 classes of services. (The WIPO recently revised the Nice Classification, adding three service classes (43, 44, and 45) and restructuring Class 42, retaining certain services. This provision has not yet been implemented in India).For example, printed matter, newspaper and periodicals are classified in Class 16 while services in the field of publication comes under Class 41.The registration of a trademark confers on the registered proprietor of the trademark the exclusive right to use the trademark in relation to the goods or services in respect of which the trademark is registered. While registration of a trademark is not compulsory it offers better legal protection for action for infringement. Any person can apply for registration of a trademark to the Trademark Registry under whose jurisdiction the principal place of the business of the applicant in India falls. In case of a company about to be formed, anyone may apply in his name for subsequent assignment of the registration in the company's favor.Before making an application for registration it is prudent to make an inspection of the already registered trademarks to ensure that registration may not be denied in view of resemblance of the proposed mark to an existing one or prohibited one. An application for trademark may be made on Form TM-1 with prescribed fee of Rs. 2500/- at one of the five office of the Trade Marks Registry located at Mumbai, Delhi, Kolkata, Chennai and Ahmedabad depending on the place where the applicant resides or has his principle place of business. The application is examined to ascertain whether it is distinctive and does not conflict with existing registered or pending trademarks and examination report issued. If it is found be acceptable then it is advertised in the Trade Marks Journal to allow others to oppose the registration. If there is no opposition or if the opposition is decided in favor of the applicant then the mark is registered and a certificate of registration is issued. If the applicant's response does not overcome all objections, the Registrar will issue a final refusal. The applicant may then appeal to the Intellectual Property Appellate Board, an administrative tribunal. A common ground for refusal is likelihood of confusion between the applicant's mark with registered mark or pending prior mark. Marks, which are merely descriptive in relation to the applicant's goods or services, or a feature of the goods or services, may also be refused registration. Marks consisting of geographic terms or surnames may also be refused. Marks may be refused for other reasons as well. The term of a trademark registration is for a period of ten years. The renewal is possible for further period of 10 years each. Unlike patents, copyrights or industrial design trademark rights can last indefinitely if the owner continues to use the mark. However, if a registered trademark is not renewed, it is liable to be removed from the register.

Anyone who claims rights in a mark can use the TM (trademark) or SM (service mark) designation with the mark to alert the public of the claim. It is not necessary to have a registration, or even a pending application, to use these designations. The claim may or may not be valid. The registration symbol, (R), may only be used when the mark is registered.

India’s obligations under the TRIPS Agreement for protection of trademarks, inter alia, include protection to distinguishing marks, recognition of service marks, indefinite periodical renewal of registration, abolition of compulsory licensing of trademarks, etc. India, being a common law country, follows not only the codified law, but also common law principles, and as such provides for infringement as well as passing off actions against violation of trademarks. Section 135 of the Trade Marks Act recognizes both infringement as well as passing off actions.

Trademark Infringement And Remedies

Trademark infringement is a violation of the exclusive rights attaching to a registered trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when the infringer (i.e. the person doing the infringing act), uses a trademark which is identical or confusingly similar to a registered trademark owned by another person, in relation to products or services which are identical or similar to the products or services which the registration covers. The owner of such registered trademark may commence legal proceedings against the infringer.

A trademark which is not registered cannot be infringed as such, and the trademark owner cannot bring infringement proceedings. Instead, the owner can commence proceedings under the common law for passing off or misrepresentation, or under legislation which prohibits unfair business practices. In some jurisdictions, infringement of trade dress may also be actionable. To establish infringement with regard to a registered trademark, it is necessary only to establish that the infringing mark is identical or deceptively similar to the registered mark and no further proof is required.

Trademark infringement is an infringement of exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensee. Trademark infringement typically occurs when a person uses a trademark which may be either a symbol or a design, with resembles to the products owned by the other party. The trademark owner may begin an officially permitted proceeding against a party, which infringes its registration. There are two types of remedies are available to the owner of a trademark for unauthorized use of its imitation by a third party. These remedies are an action for passing off in the case of an unregistered trademark and an action for infringement in case of a registered trademark. An infringement action and an action for passing off are quite different from each other, an infringement action is a statutory remedy and an action for passing off is a common law remedy

In case of infringement / passing off trademark, a criminal complaint can also be filed. It may be noted that under the Provisions of the Trade Marks Act, 1999, the offences under the Act are Cognizable, meaning there by that police can register an FIR (First Information Report) and prosecute the offenders directly.

Civil remedies in Trademark:

# Injunction/ stay against the use of the trademark
# Damages can be claimed
# Accounts and handing over of profits
# Appointment of local commissioner by the court for custody/ sealing of infringing material / accounts
# Application under order 39 rule 1 & 2 of the CPC for grant of temporary / ad interim ex-parte injunction

The Courts can grant injunction and direct the custom authorities to withhold the infringing material / its shipment or prevent its disposal in any other manner, to protect the interest of the owners of intellectual property rights. This legal proposition can be enforced with / without involving the concerned authorities as a party in the suit.

The relief which a court may usually grant in a suit for infringement or passing off 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 may be passed ex parte or after notice. The Interim relief's in the suit may also include order for:

(a) Appointment of a local commissioner, which is akin to an “Anton Pillar Order”, for search, seizure and preservation of infringing goods, account books and preparation of inventory, etc.

(b) Restraining the infringer from disposing of or dealing with the assets in a manner which may adversely affect plaintiff’s ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.




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