A violation of trademark, also known as trademark infringement, occurs when someone uses a registered trademark without the permission of the rightful owner. This is a breach of trademark rights and can result in serious legal consequences, such as lawsuits, monetary fines, and court injunctions to stop the unauthorized use. Comes under the trademark 1999, handled by the CGPDTM.
But still, there’s much more to understand about trademark infringement beyond just unauthorized use. Such as Types of infringement, Penalties, and remedies.
Type of Trademark violation:
There are two types of trademark violation: 1. Direct infringement and 2. Indirect infringement
Direct infringement
This comes with the Section 29 Act. There are a few elements that come in the direct infringement.
Use by an unauthorised person
An unauthorized person refers to someone who lacks legal permission or rights to use the trademark. So, when an unauthorised person uses the trademark, this is considered a breach of the trade rights.
Identical or deceptively similar
The term ‘deceptively similar’ needs some attention. Many businesses use such a trademark that is similar to a very famous brand, which leads to consumer confusion. Similarity can be in logo, name, or there can be some phonetic similarity. So the unauthorized person must have used the trademark in an identical or deceptively similar manner.
Registered trademark
The violation of the trademark will only be considered for the trademarks that are registered. If the violations happen with an unregistered trademark, common law will apply to settle the disputes. Tort law is used when the injury or damage occurs to the goodwill associated with the trademark.
Class of goods or services
The breach must be done under the same class of products that you use.
Indirect infringement
Indirect Infringement refers to cases where the person responsible did not directly violate the trademark, but was involved in some way. Even though trademark laws may not specifically define indirect infringement, it is still actionable under general legal principles, especially under the concept of vicarious liability.
Vicarious Liability
In trademark terms, it applies when a person or entity had the power to control the infringement and benefited from it, even if they didn’t commit the act directly.
For example, if someone uses a trademark because they were instructed by a superior or company, the person in charge can still be held liable, because they had the authority to stop it but didn’t.
Contributory infringement
Contributory infringement happens when someone knowingly helps another person commit trademark infringement. This could be by giving support, tools, or even encouraging the act. For it to apply, the person must know about the infringement, contribute to it in some way, or push the main offender to do it. In these cases, acting in good faith doesn’t matter—if you helped knowingly, you’re still responsible.
Remedies and Penalties
If any law is broken, punishment or legal action will follow. In the case of trademark violation, the law provides certain remedies to the plaintiff (the person whose rights are harmed).
In trademark law, Section 29 of the Trademarks Act deals with infringement, and there are two main types of remedies available:
- Civil Remedy – For compensation, stopping the use, or damage recovery.
- Criminal Remedy – For punishment, like fines or imprisonment.
Civil remedies have multiple types
Injunctions- one is a temporary injunction in which the court orders to stoppage of the use of the trademark until judgment is passed, and a permanent injunction, where the use of the trademark is stopped permanently.
Damages are given to provided to the plaintiff. Where actual damage is the actual amount of profit in the illegal use, and is paid to the trademark holder. And the other is additional Damages that are also given,n where the intangible harm to the plaintiff will be provided.
In cases of trademark infringement, the law also allows for criminal action against the offender. This is done to punish and prevent the misuse of trademarks. The punishment includes: Imprisonment: Minimum of 6 months, which can extend up to 3 years, Fine: Minimum of ₹50,000, which can go up to ₹2,00,000
Conclusion
Trademark violation is a big problem in the world where trademarks are used without permission. This article helps to understand the topic in very easy words and a concise manner.
Trademark Violation Faqs
1.) What is a violation of trademark?
Trademark passing off is passing off an owner-registered mark—at least deceptively similar, but not actually registered—without the owner’s consent, with intent to deceive or to cause damage to the brand.
2.) Can I sue someone for using my unregistered trademark?
Yes. You can sue for a passing off act if you can establish goodwill, reputation, and loss due to the other party’s use of your mark.
3.) Is domain name squatting a trademark violation?
Yes. When a domain name is purchased with the intent to gain profits from a mark, then it can be said to be cybersquatting and is a trademark remedy law.
4.) How long does it take to resolve a trademark infringement case in India?
Typically, 12-36 months, depending on jurisdiction and on how complicated. An interim injunction can be granted if the case is in short notice, though.
5.) How does AnalystIP help in preventing trademark violations?
AnalystIP provides end-to-end trademark services such as search, registration, international watch, enforcement plan, and legal counsel to safeguard your brand round-the-clock.
6.) Do I need to register my trademark in every country I sell in?
Yes. Trademarks are territorial rights and should be enforceable only where registered. Filings elsewhere can be handled by AnalystIP.
7.) What should I do if I receive a cease-and-desist letter?
Don’t dismiss it. Discuss with a trademark lawyer or dial an agency such as AnalystIP to assist in establishing whether the complaint is legitimate and how to answer it.