What is the procedure for filing infringement of trademark?
There are some ways you can file for trademark infringement for any unauthorised use by another party. Let’s see how.
Trademarks Act, 1999 (referred to as the Act) is an act that protects trademarks in India. The act sets out rules relating to registration, protection and penalties for infringing the law regarding trademarks. Trademarks have the status of intellectual property worldwide. There are many organisations, both international and national, that try to protect intellectual property as trademarks.
In India, the Indian Patent Office, headed by the Controller-General of Copyright, Designs and Trademarks, is responsible for the protection of trademarks.
In simple terms, infringement of trademark is the unauthorised use of the same or fraudulent trademark similar to a registered trademark. The deceptively similar here means that when a general buyer looks at a mark, he may be confused about the origin of the goods or services.
What is the punishment for infringement of trademark?
In India, Trademark infringement is a cognisable offence (cases in which the police have the authority to arrest without a warrant ). The offender can face civil and criminal charges as well. So, before you think of copying someone else’s trademark, do remember, ‘what is the punishment for infringement of trademark?’
The punishment for trademark includes imprisonment for a minimum period of 6 months which may exceed 3 years. The offender may end up paying a fine ranging from Rs.50,000 to Rs.2,00,000 for offenders. However, in addition to these severe penalties, the court may issue an interim and permanent injunction—the destruction of goods with a trademark infringement, compensation for damages, and litigation costs.
The offender will also be liable for punishment if the trademark he uses has yet not been registered.
Documents required for filling in a case of a trademark infringement
Before applying for an infringement of a trademark, make sure you have the following documents available to you:
- Advertisement copy of your trademark in the journal.
- LPC (Certificate of Legal proceeding) of Trademark by the Registrar.
- Trademark Registration Certificate.
- Data for loss to the company by the infringement.
The procedure of filing suit for a trademark infringement
Step 1: Suit against infringement
The first step in case of trademark infringement is to file suit against the use of your trademark in a district court. The application should contain all the crucial facts and data of your case.
Step 2: The first hearing
Upon receipt of a suit, the judge first looks at the suit and then gives notice to the other party for a second trial after verifying all the details and documents.
Step 3: Court fee
The court fee must get paid before the second trial.
Step 4: The second hearing
Both parties contest their case at the second hearing and have provided substantial evidence to support their claims. If the court is satisfied with the arguments, it may issue a final decision or set a date for the next hearing in court.
Step 5: Final judgment
After arguments between the two parties, the court issues its final judgment.
How can you avoid trademark infringement?
Section 30 of the trademark enforcement act deals with certain conditions that may be considered a trademark infringement. If any person has a license from the owner of a registered trademark, then it is not covered under infringement as the assignment agreement permits the license.
However, the user may be warranted for unauthorised use if the licensee uses trademark enforcement on goods and services not covered under an assignment agreement.
Select the trademark after conducting proper research
It would be better always to choose your trademark carefully and consider certain things. Those items include a different name, appropriate trademark, appropriate category, the absence of such or similar trademark in class, and so on.
Registered it after the verification by the registrar
The first and most necessary step after deciding on the trademark is registering. Registering a trademark can obtain all of its legal rights and other benefits. It includes product recognition, legal protection, financial benefits, and product value.
Obtain authorisation from the owner before using it
The best way to avoid trademark infringement is to obtain the owner's approval before using it.
Use with a fair purpose
A trademark should be used for identification and does not constitute a breach of the conditions of the trademark. Proper use includes news, commentary, criticism, parody, comparative advertising, and non-commercial use.
Conclusion
In India, knowledge of brand name protection through trademark registration is growing. However, the owners still do nothing about the unauthorised use of their registered trademark. The infringement of trademark may occur within the organisation, affecting the brand name and market share in the owner's business.
A registered trademark owner may institute legal proceedings against the infringer who declares improper business practices that are carried out.
Two types of remedies are available to the trademark owner against any unauthorised use by any third party. The Trademark Act protects the trademark through civil and criminal remedies. The trademark owner may institute legal proceedings before the District Court under the jurisdiction of the law.
