TRADEMARK INFRINGEMENT & IT’S CONSEQUENCES
The fundamental reason for a trademark is to help individuals perceive the source of particular goods and services. The source enables individuals to decide the quality. Quality is the thing that customers typically base their buy choices on. This is the reason a trademark is critical in the economy. A trademark reflects the source and quality of the goods or services.
This is why it is essential to guarantee that the trademark isn’t being infringed upon. A trademark speaks to the brand estimation of the trademark proprietor. Infringement of trademark causes losses in finances and reputation to the proprietor of the infringed mark. It is, therefore, in every case better to be cautious and keep potential infringers from riding on the goodwill and reputation that the original trademark owner has built up.
Trademark infringement in India is characterized under Section 29 of the Trademarks Act, 1999. When an unauthorised proprietor uses a trademark that is ‘identical’ or ‘deceptively similar’ to a registered trademark, it is known as infringement.
The essentials of Trademark Infringement are as follows:
1. Unauthorised Proprietor – this implies a user or proprietor who isn’t the proprietor or the licensee of the registered trademark.
2. ‘Identical’ or ‘Deceptively Similar’ Marks– the test for deciding if marks are identical or not is decided if there are any chances of confusion among general consumers. If the consumers are likely to get befuddled between the two marks, at that point, there is an infringement of the registered trademark.
3. Registered Trademark – A registered trademark can only be infringed. For an unregistered Trademark, the common law for passing off will apply.
4. Goods or Services – To establish infringement even the goods or services of the infringer must be identical with or similar to that of the goods of the registered Trademark.
Any unauthorised use of the exclusive right, incorporated in the statute, of a registered trademark, establishes infringement. The infringement discussed above is an immediate infringement.
There is another perspective to trademark infringement in India which includes indirect infringement.
Indirect infringement is a common law rule that considers the direct infringers liable as well as the individuals who prompt the direct infringers to infringe the registered trademark.
An individual will be liable for contributory infringement under two conditions:
1. At the point when the individual is aware of such infringement.
2. At the point when an individual materially contributes or instigates the direct infringer to commit such infringement.
An individual will be vicariously liable under the following conditions:
- When the individual can control the activities of the direct infringer.
2. When an individual gets a budgetary profit by the infringement.
3. When an individual knows about the infringement and adds to it.
Vicarious liability generally applies in case of master-servant relation. This is indirectly mentioned in Section 114 of the Trademarks Act. All in all, indirect infringement happens when an individual, however not infringing straightforwardly, makes someone else infringe on a trademark.