Protecting Your Brand Online – Avoiding Trademark infringement
In modern times, the first trademark law came into existence in the late 19th century. The symbol used for representing a trademark is ™ and ® for a registered trademark. The first time the term trademark came into existence was in France to distinguish bread by different bakeries. But since then, we have had to protect our brand on the internet from anything which jeopardises our authenticity, especially post-internet revaluation Trademark Protection Service is the most critical concern for the brand. So let us understand how we can make sure that our trademark remains protected and our brand manages to stay unique?
Table of Contents
What is Trademark Infringement
A Trademark is something that makes a company or brand stand out. It can be anything from a logo, phrase, symbol, design to all these things combined. So, Trademark infringement means illegally copying a registered trademark of another brand by an unauthorized person. A trademark has to be registered under the company or brand’s name for it to be protected under the Trademarks Act 1999. In case of not being registered under this act, the trademark can still be protected under generic law rights if the company is well known and reputed enough.
Trademark Infringement Example
Let us take an example of Zara Food Vs Zara Fashion,
Both of these brands had the same name although Zara fashion is a well-renowned Clothing brand that operates all around the world. But, it came into notice that a restaurant with a similar name is situated in Delhi. This could create a lot of misunderstanding between the consumers as they may mistake the restaurant as a venture of the popular fashion brand. When the case appeared in the High court, they also had similar thoughts and looked upon the general facts like Zara (fashion) had started its first store in India in 2010 and had also applied for trademarks in India. Therefore, the restaurant was ordered to change its name and is currently operating under the name of Tapas Bar.
Elements used to determine the infringement of the trademark
As we move further, it is important to know on what basis can we base the idea that a trademark is being infringed.
- Unauthorized person: this means a person who is not the owner or an individual who does not hold responsibility for the license of the registered trademark.
- Registered Trademark: The infringement of a trademark will only be considered if the trademark is registered. In the case of an unregistered trademark, the common law will be applied.
- Indistinguishable or misleadingly alike: This can be seen with the presence of the target audience and whether they are confused by the similarity between the trademarks in question.
- Category of goods/ services: To establish the infringement of a registered trademark the goods or services provided by the brands must be similar in one way or another.
- The marketing channels used by the respective trademarks and their reputation.
- The chances of progress in the individual growth of each trademark holder.
Types of trademark Infringement
There are 2 types of Trademark Infringement:
- Direct Infringement
- Indirect Infringement
Direct infringement
The most common type of infringement is seen generally. It is also subdivided into 2 parts; literal and non-literal infringements. Direct infringement is outlined by section 29 of the Trademark Act, 1999. In case of any unauthorised use of the registered trademark and its exclusive rights, it will be considered a case of infringement.
One can look for examples of direct infringement as in the case of Polaroid Corp v. Eastman Kodak Co.
Indirect Infringement
Although there is no specific provision in the act for indirect infringement, there are still certain liabilities to look out for. There are two types of indirect infringements, named Vicarious liability and Contributory infringement. Indirect infringement is when dealing with unlicensed copies which are not made by the unauthorized person.
An example of this is Raben footwear and polygram records (1997). Raben had asked for 1000 Cher CDs to be imported from Germany which later on it was sued for by Polygram records. On being questioned Raben disclosed that he had no knowledge but later on was subjected to infringement of copyright after the proper investigation and the supplier’s statement for producing the CDs in Australia.
How to protect your trademark with legal practices
To get your trademark registered, your trademark should meet two basic requirements. These are
- The mark can be represented digitally or on paper graphically.
- The trademark holds accountability for being distinguished from goods or services provided by others.
The procedure to follow for trademark registration is similar to intellectual property rights.
- For trademark registration, we need to apply to section 18 of the Act.
- Similar to patent registration, trademark registration needs to be advertised instead of published under section 20 of the Act.
- In case of any objection, an individual can file an opposition under section 21 of the Act. (Applicable only within 4 months from the date of trademark application.)
- The applicant is allowed to correct any errors or omissions or discard the opposition under section 22 of the act.
- The final stage when the applicant’s trademark will be granted is within 18 months under section 23 of the Act from the date of applying.
The applicants must note that any correction suggested by the registrar must be corrected within 12 months from the date of application then it is believed to be abandoned.
Protecting your Trademark - Online
When it comes to the online world, domain name registration is open to the world, To protect your online brand name in the world of domain name Netspace™ (India) brand protection service helps the brand owner to provide the first line of defence against domain abuse. Netspace™ (India) provides you multifaceted protection to make sure your domain remains protected and valid in the digital world by our Domain Name trademark Protection Service.
Conclusion
Trademark Infringement is the illegal use of a registered trademark directly or indirectly. It can lead to penalties and has certain elements on which it is considered to occur. For the legal procedure, the brand or the applicant must fulfill all the criteria and follow through with the guidelines. Say goodbye to your fear of trademark infringement with Netspace™ (India) domain name trademark protection service.
To make sure to steer clear of the risk of your trademark being diluted or losing its exclusive rights, you should ensure to be up to date about defending your trademark. The risk of a trademark being misused by an unauthorised entity is high and thus proper strategies must be brought into action by the responsible authority. An infringer (if proven in court) may have to pay the attorney’s fees, pay back the damages caused by the infringement, destroy or seize the products with the same trademark, etc.
One should avoid trademark infringement at all costs. To make sure of this, you should do a proper trademark search before finalising and establishing your trademark. To do this, you need to look out at every platform possible whether the trademark you are using is already in use by some other entity. You should also make sure to keep your trademark as distinct and distinguished as possible with no similarities to the other trademark.
- There is no time limit for filing a suit on trademark infringement.
- When a trademark is supposedly infringed, civil or criminal action can be taken as required.
- If the infringement seems to be true, then the court of competent jurisdiction can take the following actions:
- Stopping the further usage of trademarks.
- Appropriate compensation is provided to the affected party.
- The local commissioner seals or withholds the infringing materials and accounts.
- In case of a strong case against the infringer, the affected party can apply for the grant of temporary or ad interim ex-parte injunction under order 39 rules 1 and 2 of CPC.
Anjali Tyagi
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