Trademark Infringement: Meaning and Types

Infringement simply means unauthorized use of someone else’s property. Likewise, an act of trademark infringement is the unauthorised use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services. This can occur when the mark is placed on the goods and/or services themselves, or when it is used in conjunction with the goods and/or services.

What is the Exact Meaning of Trademark Infringement?

Trademark infringement is characterized as the violation of someone else’s exclusive rights related to their trademark. In other words, using someone’s trademark without their permission or with some commercial or bad intention.

Constituents of Trademark Infringement

Some of the constituents of Trademark infringement can be:

• Unauthorized use by any third person.

• Use of identical mark or mark that is deceptively similar.

• Registration of trademark so claimed to be infringed.

• The mark that has been infringed associated to Goods & Services.

Different kinds of Infringement of Trademarks

Major types of infringement of trademarks are−

Infractions Committed Directly

The legislation pertaining to the direct infringement of a trademark is outlined in Section 29 of the Trademark Act, which was passed in 1999. According to the legislation, direct infringement is defined as occurring in any of the following scenarios:

A trademark is considered to be in direct violation of the law if it is either identical to an already registered brand or if it is designed in such a way that it leads consumers to believe that the registered trademark is somehow different.

When a registered trademark is used without the owner's permission, this is known as "Used without Owner's Permission" (Used without Owner's Permission).

Utilization of a trademark that is confusingly similar within the same class: In order to constitute an act of trademark infringement, an illegal use of the mark must have been put into practise with the intention of promoting a product or service that is classified in the same category as the registered trademark.

Infringement via Indirect Means

Infringement by Vicarious Act: This kind of infringement is referred to as "vicarious infringement," and it occurs when a person may control the activities of a direct infringer who is infringing.

Cases that fall under the category of contributory infringement include those in which the individual either knows about the infringement, helps to direct infringement, or induces the primary infringer for the purpose of committing direct infringement.

Commonly Used Terms for Trademark Infringement

• Counterfeiting: It means, when someone makes an exact copy of a trademarked product or uses a mark that is identical to someone else’s registered trademark on competing products.

• Cybersquatting: It means, when someone registers a domain name that is identical or similar to someone else’s trademarked name.

• Trademark dilution: It means, when someone uses someone else’s trademark in a way that weakens its distinctiveness or tarnishes its reputation.

• Passing off: It means, when someone sells or promotes goods or services using a mark that is likely to cause confusion among consumers as to the source or sponsorship of those goods or services.

• False advertising: It means, when someone makes false or misleading statements in advertising or promotional materials regarding the source or sponsorship of goods or services.

Steps that can be taken in case of Trademark Infringement

Not only does trademark infringement occur when an unauthorised individual uses your registered brand without your permission, but also some exceptional circumstances are considered to fall under this category. Infringement of a trademark is possible in any of the following three scenarios involving trademark registration:

In conjunction with your Trademark (Registered)

When someone uses your registered brand without your permission, this is known as trademark infringement. The act of infringing may either be done directly or indirectly.

Solution: If this is the case, you have the option of taking legal action in the district court for trademark infringement.

In conjunction with your Trademark (Unregistered)

When you have been using your trademark for a significant amount of time but have not registered it, there is a chance that another party may use it or attempt to register it.

Solution: If someone attempts to register it, you may file a trademark opposition against it and prevent them from doing so. If neither you nor the other party makes an effort to register it, you should launch an action against the other party after you have first made an application for its registration (infringer).

Your Trademark Registered to Someone else

When someone else registers a trademark that rightfully belongs to you, the situation is as follows: It indicates that you have been making use of your trademark for a considerable amount of time, but another party has just succeeded in getting it registered in their name.

We have the option of submitting a trademark correction application to the relevant registrar.

Penalties for Trademark Infringement

Infringing on someone's trademark is a cognizable crime in India, which means that the person doing the infringing may be held accountable for both civil and criminal violations. According to Indian law, registering a trademark prior to initiating either civil or criminal procedures is voluntary and not required. This is true for both types of proceedings.

The Price Paid for Legal Actions

In the event of a criminal procedure, the judge will decide the appropriate sentence, which is as follows:

Punishment by imprisonment for a term of not less than six months and not more than three years; a fine that is not less than 50,000 Indian rupees and not more than two lakh Indian rupees.

Remedies for Trademark Infringement in India

The owner of the Registered Trademark has the ability to commence legal procedures against an infringement and declare the unfair business activities that the infringer has carried out.

The owner of a trademark has two different sorts of legal recourse open to them in the event that a third party makes unlawful use of their brand. The Trademark Act provides both criminal and civil remedies for the protection of trademarks. The proprietor of the trademark has the ability to commence civil proceedings before the District Court, depending on the jurisdiction.

Conclusion

In India, more and more people are becoming aware of the need of registering their brand names as trademarks to safeguard their businesses. Despite this, the owners continue to take no action over the unlawful use of their registered brand. A violation of the right over a trademark may occur internally in an organisation, which has the potential to have an impact not only on the brand name, but also on the market share in the owner's company.

FAQs

Q1. What is Likelihood of confusion in reference to trademark?

Ans. The protection of consumers should always be the primary focus of trademark law. It is to the advantage of corporations, but the courts are much more concerned with determining whether or not customers are being deceived about the provenance of the products they buy. Because of this, it is essential to consider the degree to which consumers are likely to confuse your mark with an offending mark. The court will consider a number of factors, including whether or not the potentially infringing trademark is being used on goods or services that are being offered by a competitor, whether or not it is likely that customers will be confused by it, and whether or not the trademark is being used in the same geographic region or on goods that are related to each other.

Q2. Which kind of penalties are available for trademark Infringement?

Ans. Infringing on someone's trademark is a cognizable crime in India, which means that the person doing the infringing may be held accountable for both civil and criminal violations. According to Indian law, registering a trademark prior to initiating either civil or criminal procedures is voluntary and not required. This is true for both types of proceedings.

Q3. How do you stop someone who is infringing your trademark?

Ans. The first step would be to send a cease-and-desist letter. If that is ignored, the only option may be to sue.

The main considerations in most trademark infringement suits are the likelihood of confusion, dilution, and tarnishment.