Trademark

Will it be a Violation of Trademark norms if someone Else is using Your Trademark?

calendar13 Dec, 2020
timeReading Time: 6 Minutes
Violation of Trademark Norms

Trademark registration makes sure that some rights and privileges are provided to the owner of trademark and protect them from undue imitations. It forbids the use of the same logo or design by any other. Therefore it makes sure that the proprietor has total control over the brand name of the company.

Even after attaining Trademark Registration for a logo or a tagline we notice that other businesses feel that they can copy the trademark and get away with it. In this particular blog we are going to discuss Violation of Trademark Norms if someone else is using your Trademark. You can ban someone else from using the same logo or design as you do after the registration of trademark. If you find anyone copying your work then you have to follow the steps that are provided below.

What can be Trademarked?

In India laws has permitted you to trademark any of the following:-

  • Three- Dimensional sign.
  • Catchphrase
  • Combination of colors
  • Graphic design
  • Invented word
  • Letter
  • Logo
  • Mark
  • Monograms
  • Numerical value
  • Smell
  • Sound or Jingle
  • The shape of goods or packaging
  • Word

Legal Requirements to Register a Trademark

  • The mark should be graphically presented.
  • It should help customers distinguish the goods of the company from goods of another company.
  • It has to be used to specify a connection between the goods and the company who manufactures the goods.

Function of a Trademark

  • Classify the goods and services
  • Certification for quality
  • Promotes the Goods & Services
  • It adds value to the brand name
  • Generates an image of the brand name

Steps to Take in case of Violation of Trademark norms if Someone Else is Using Your Trademark

Violation of Trademark norms

Whether it is an Actual Infringement of Trademark Laws

Before you file a complaint or decide to take legal actions, you are required to verify whether there is violation of trademark norms.

Trademark Infringement

Trademark infringement happens when customers believe that any other brand is same as the brand owned by the proprietor due to the cautious placing or abuse of a trademark tagline or logo.  This double utilization of Trademark has lead to confusion and disappointment among the users of the marks.

Therefore if you utilize a particular trademark to make your goods and services unique, you should make inquiries with the consumers whether a similar name or Logo used by a different brand is confusing them or not.

Geographic Restrictions

While these may not hold for large ventures, small ventures often face difficulties proving infringement concerning the location. If your business has a countrywide presence then you don’t have to worry about area or location. Due to rise in the internet connectivity and the expansion of E-Commerce, geographic restrictions are falling on a daily basis. Therefore, courts now believe that such online proximity has sufficient impact on sale of another company.

Indistinguishability

Another issue occurring with respect to trademark rule is that it is challenging to make the brand names indistinguishable. Similar sounding names can be violation of Trademark norms but their similarity can be subjective and so it difficult to prove in Tribunal.

The Tribunal takes view, soundness and implication of the mark as the characteristic for comparing similarity in the Trademark. It is not very easy to demonstrate that the two name sounds & looks indistinguishable, and therefore the laws related to them are vague sometime.

Action against Violation of Trademark Norms

  • If you believe that your opponent is making use of another name to bewilder clients and works in the same environment and affecting sale of your product then you should take action against the fraud.
  • The early step would be to contact an advocate who has some experience in trademark law and then follow the advice given by them.
  • Such issues are regularly dealt by sending a warning letter to the business that is violating your mark and asking them to abstain from using your logo or tagline.
  • If the infringer retreat and respects your remark and stops using your brand name then the issue is resolved.
  • If the imposter pays no attention to your warning and continue doing the same then you will have to bring it to the notice of the tribunal and undertake legal measures accordingly.
  • Documentation for claims that specifies the violation of Trademark Norms and the effects on your business in the Tribunal and if the violation is occurring in several areas, then approach the state court.
  • Documentation for a trademark infringement claim and file for accused to pay you money for the harm they have done to your business.

Types of Trademark Infringement in India

One should know that are two sorts of Trademark infringement, which are as follows:-

Direct Infringement

Direct infringement is defined under Section 29 of the Trademark Act. There is a couple of basics are to be met for a direct infringement of Trademark; they’re as follows:

Use by an Unauthorized Person

The violation of any trademark occurs when the mark is used by an individual who isn’t allowed or authorized by the owner of the registered Trademark. If the mark is employed with the permission of the owner of the registered trademark, it doesn’t comprise Trademark infringement.

Identical or Deceptively Similar

The Trademark employed by an unauthorized person must be either identical or deceptively, almost like that of the registered Trademark. The term ‘deceptively similar’ means the quality buyer could also be confused between the marks and think of being of an equivalent brand.

Registered Trademark

The Trademark Act only protects a trademark that has been registered with the Trademark Registry of India. Within the case of infringement of an unregistered mark, the law of passing off is often applicable to address the disputes. Passing off maybe a Law of Tort will be used when the injury or damage is caused to the “goodwill” connected with the other person’s actions.

Class of Products & Services

For Violation of Trademark Norms, the illegal use of the Trademark has got to be used for the dissemination of products & Services that falls under an equivalent class of any registered trademark.

Indirect Infringement

Unlike “direct infringement”, there’s no proviso within the Trademark Act that deals with “indirect infringement” exclusively. This doesn’t state that there’s no liability for indirect infringement of a trademark. There are two sorts of indirect infringement, and that they are as follows-

Vicarious Liability

According to Section 114 of the Trademark Act, if any business owner commits an offense under this provision, then the whole company is going to be responsible for Indirect Infringement. Those people that acted in straightness and without knowledge of the infringement will not be liable for violation of Trademark Norms.

The prerequisites for vicarious liability are as follows-

  • The individual can control the actions of the main infringer;
  • The individual knows about the violation and also contributes to the violation of trademark norms;
  • The individual acquire any financial gains from the infringement of the Trademark.

The exclusion to “vicarious liability” of any company for violation of trademark norms is when the company acted in straightness and had no idea about the trademark infringement.

Contributory Infringement

There are three essentials to contributory infringement; they’re as follows-

  • The person knows about the infringement of the Trademark;
  • The person considerably contributes to direct infringement;
  • The person provokes the principal infringer to infringe the Trademark.

Penalties for Trademark Infringement

Trademark infringement in India may be a cognizable offense meaning that the infringer can face civil charges alongside criminal charges. It’s not mandatory as per Indian law that a Trademark should be registered for the institution of civil also as criminal proceedings.

Cost of Legal Proceedings

In case of a criminal proceeding, the Court orders the subsequent punishment-

  • Imprisonment for a period, not but six months, which can reach three years;
  • A fine not less than INR 50,000 and can reach up to INR 2 lakhs.

Remedies for Violation of Trademark Norms in India

The Registered Trademark owner can start legal procedures against the infringer, declaring the unfair business practices that they carried on.

There are two classes of remedies available to the trademark owner against any violation of Trademark norms by any third party. The Trademark Act[1] protects the Trademark by providing criminal & civil remedies. Civil remedies are often initiated by the owner of Trademark before the Tribunal according to the jurisdiction.

Civil Remedies for Violation of Trademark Norms

The civil remedies for Trademark infringement in India are as follows-

Injunction

An injunction is often mentioned when one person is prohibited from doing a selected activity or task through judicial proceedings. For trademark infringement in India, it prevents an individual from unauthorized use of the Trademark. By a short-lived or permanent stay order, the Court can grant protection to the owner of Trademark.

Damages

Damages refer to the revival of any loss faced by the owner of Trademark due to violation of Trademark Norms. The financial value of loss or brand injury is recovered under Damages. The quantity of damages will be decided by the Court after considering the particular and predictable failure of the owner thanks to Trademark infringement.

Conclusion

Violation of Trademark Norms occurs when customers believe that any other brand is using a registered trademark tagline or logo.  The double utilization of Trademark has lead to confusion and disappointment among the users of the Trademarks.

Trademark registration makes sure that some rights and privileges are provided to the owner of trademark and protect them from imitative copy. It forbids the use of the same logo or design by any other. Therefore it makes sure that the proprietor has total control over the brand name of the company.

Read our article: What is the Present Scenario of Trademark Registration for Online Business? Let’s Understand in Detail!

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