Types of Trademark Infringement in India
Trademark Infringement in India is the unlawful use of a registered trademark of a brand for personal gain by an unauthorized person.
Types of Trademark Infringement in India
There are two types of Trademark Infringement in India:
Direct Infringement
Direct Infringement is based on Section 29 of the Trademark Act, 1999. It means when an unauthorized person uses a trademark that affects the goodwill or endangers the financial flow of the brand it is correlated with.
For example, let us take the case of M/s Biofarma v. Sanjay Medical Stores.
In this case, Biofarma accused Sanjay Medical Stores of using a deceptively similar trademark of their ‘Flavedon’ for similar drugs. However, the name was different for Sanjay Medical stores trademark ‘Trivedon’ which they claimed was honestly adopted through the active ingredient ‘trimetazidine’.
The court decided in favour of the plaintiff and stated the reason being the word ‘vedon’ to be associated originally with them, thus making the defendant pay for the damages within three weeks.
A trademark will be considered directly infringed under the below-mentioned conditions:
Usage by unauthorized persons
The deed must be done by an unauthorized person or else the trademark will not be considered infringing.
Registered trademark
The trademark has to be registered to be protected under Section 29. The Trademark Act, 1999 will not apply for unregistered trademarks but they will be covered under the general law of passing off.
Passing off is a law where any sort of damage or injury to the well-being of an individual or a group of people.
Visually Similar or deceptively matching
When the people purchasing the products or services are misled due to the appearance of the trademark, this falls under the category of direct infringement. Not only this but it also harms the value of the registered trademark.
Products/services categories
Usage of a registered trademark on labeling, packaging and not using the trademark on the goods or services provided by the unauthorized person.
Indirect Infringement
Although there is no specific action mentioned under the Act for Indirect infringement, there still lies possible liabilities. To get a better understanding let us look at the example of Dish Network v. Siddiqi.
In this case, there was a direct relationship proven between the main infringers (located in Pakistan) and the defendant which consequently harmed the plaintiff (Dish Network) financially.
The court decided the defendant to be guilty and asked for the required damages and other finances to be paid.
Indirect infringement is further divided into two categories:
Contributory Infringement
The following factors determine contributory infringement:
- The person is aware of the Infringement;
- A person encouraged the main infringer for committing Infringement;
- An individual contributed to direct management of the infringement materially.
If any individual contributes to the infringement as suggested above, then they will be held liable irrespective of whether or not they were the primary infringer. As there is no possibility of the contributory infringer acting in good faith, this infringement leaves space for no exceptions whatsoever.
Vicarious Liability
As per the Act, any person or company found guilty of this will be liable. However, if found the guilty person is of good faith and unaware of the infringement, then there is an exception available.
Below are the essential elements for the occurrence of vicarious liability:
- When an individual regulates the actions of the principal infringer.
- When an individual gains monetary benefits from Infringement.
- When an individual was aware of the Infringement and participated anyway.
The types of trademarks that can be registered in India are:
- The certification mark
- Series Mark
- Collective Mark
- Logos and symbols
- Shape marks
- Words and service marks.
How to avoid being a victim of Trademark Infringement in India- online?
With the increasing risk of trademark infringement in India and the rising number of TLDs, you and your brand needs the protection provided by Netspace™ (India), where we make sure to protect and maintain your legal trademark in the digital world.
Conclusion
Trademark Infringement in India is divided into two types, namely direct and Indirect Infringement. These includes certain condition which are to be avoided so you don’t commit it knowingly or unknowingly as this can lead to serious legal consequences.
FAQs
Any authorized person who is the rightful owner of a trademark can write in the prescribed manner for the registration process.
There are three distinct elements required to determine if a trademark is infringed. These are ‘use’, ‘ in commerce’, and ‘likelihood of confusion.
Damages are mostly decided with regard to the following five factors:
- Disgorgement of the defendant’s profits
- Profits lost by the registered trademark holder
- Corrective Advertising
- Reasonable royalty
- Property appropriation
An infringement of a trademark is a criminal offense in India and the person found guilty can be charged with both civil as well as criminal charges.
Anjali Tyagi
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