Trademark
Infringement and Remedies in India
A Trademark makes out a company stand out and
gives it a more noteworthy status. The law administrating and protecting
Trademark in India is the Trademarks Act, 1999. Section 2 of the act defines Trademark
as a mark capable of being represented graphically and capable of
distinguishing one person's goods or services from those of others and may
include the shape of goods, their packaging and combination of colors.
Legal Framework
In India, Trademarks are secured through
explicit resolutions like The Trademarks Act, 1999 and auxiliary resolutions
like the Companies Act 1956, and the Customs Act, 1962.
The Trademark Act and other enactments
recommend the method to be followed before the Trademarks Registry. The common
procedural matters are dealt with in the Code of Civil Procedure 1908, while
the accounts of customs records, the Intellectual Property Rights (Imported
Goods) Enforcement Rules 2007 apply. Where the matter of Trademark is utilized
in an organization name, the Companies Act applies and the criminal authorization
cases are brought under the Indian Penal Code 1860.
Unregistered Trademarks
Section 27 of the Trademarks act lays the
provision of no action for infringement of unregistered Trademark. —
1. No person shall be entitled to institute
any proceeding to prevent or to recover damages for, the infringement of an
unregistered trademark.
2. Nothing in this Act shall be deemed to
affect rights of action against any person for passing off goods or services as
the goods of another person or as services provided by another person or the
remedies in respect thereof.
The offended party has to prove that:
A. The trademarks in dispute are comparable,
and the respondent is misleadingly making its products look like those of the
offended party.
B. And there will undoubtedly be disarray in
the psyches of purchasers. The test is to determine whether an individual of
normal insight and of defective memory would be confused.
Registered Trademark
Section 29 and Section 30 of the Trademarks
Act gives provisions for the encroachment activity. Unlike going off, in an
encroachment activity, there is not really any weight on the offended party
since qualification is as of now settled through enrollment.
The registration process for Trademark
indistinguishable imprints or marks can be
registered in an online Trademark registry. The enlisted center examines the
imprint or design and may convey to the candidate any issues with it through a
merged assessment report.
Opposition can be recorded within four months
of the imprint being distributed in the Trademark Journal. Anyone may oppose or
question an enlistment on the grounds of disarray, weakening, clarity or
conceivable trickiness.
If the imprint or design is not opposed by
anyone, it continues to enrollment. And if any person is aggrieved by an order
or decision of the Registrar under this act, or the rules made thereunder may
prefer an appeal to the Appellate Board within three months from the date on
which the order or decision sought to be appealed against is communicated to
such person preferring the appeal.
Rectification/cancellation
Once the Trademark is granted, it can be
dropped or cancelled in the light of the fact that it was wrongly allowed. A
registered trademark can be drooped on the ground that of consistent non-use
for a long time and three months from the date of award of enrollment.
Remedies
Unlike the U.S. where Trademark encroachment is covered under the Lanham Act, 1946 and doesn't cover criminal cures, Indian law considers criminal cures. Trademarks infringing law are culpable with detainment for a half year to three years and a fine between INR 50000-200000. The act further gives provision for detainment for a long time and additional penalty.