Trademark And Its Infringement

TRADEMARK:

A Trademark is a visible symbol which can be a word, name, device, label, numerals, phrase, symbol or design that distinguishes the source of products (trademarks) or services (service marks) of one business from its competitors. For example- Nike, Maggie, Apple, Coca-Cola, Google, BMW, etc.

PURPOSE/OBJECTIVE/FUNCTIONS OF TRADEMARK

  • The objective is to differentiate goods and services from others
  • To give them separate identity so that the general public will not have confusion regarding brands.
  • It gives guarantee that goods are of certain quality and stability.
  • It creates an image for the goods/services.

TYPES OF TRADEMARKS

Word Mark– It is a name written as a word or letter or group of letters. It includes one or more words, letters, numerals. It could be a name, brand, tagline, slogan without any design. For example- Google, Apple, KFC, etc.
Slogans or Taglines, like:

MC Donald’s – I’m loving it
Nike’s – just do it, etc.

Device Mark – It is a unique representation of a word, letter or numerals. It consists of word and logo both (Word + Logo).

Service Mark – These marks are related to services only to identifies and differentiates the source of a service. It is denoted by ‘SM’. For example- Google, Apple, etc.

Product Mark – These marks are related to products or goods and not for services. It helps to identifies and differentiates the source of a product. When the application is filed, we can use ‘TM’ as symbol. The time when the formalities are completed and it gets registered and when the certificate is issued then ‘R’ i.e., Registered symbol can be used as a symbol. For example- Nestle, Amul, etc.

Collective Mark – They are used to inform the public about a particular characteristic of the product for which the Collective Marks is used. The owner of such marks may be an association or public institutions or it may be cooperative. Marks used by a group of companies collectively. For example- Certified Public Accountants, Benchmark, etc.

Certification Mark It is used to identify goods or services that meet certain standards or specifications which includes quality, accuracy, place of origin, mode of manufacture of goods or performance of service, etc.
Indian Standards Institute is a certification mark for the industrial products in India. The mark clarifies that the product belongs to Indian Standard. This mark was developed by the Bureau of Indian Standard (BIS). This mark is compulsory for some products which are sold in India like switches, electric motors, heaters. Other products like LPG Cylinder, tires, Portland cement, etc.

Well Known – When a mark is recognized among a large percentage of population of that region or area, it is known as well-known mark.

Sound Mark – It refers to specially composed sounds or musical notes and sound that is used to identify a particular goods and services. For example – Netflix sound logo, Samsung ringtone, Sony “Ding” sound logo, etc.

Shape Marks – The goods or products which can easily be identify by its shapes and packaging. For example – Coca-Cola bottle, Kit-Kat chocolate, etc.

REGISTRATION OF TRADE MARKS

Under Section 28 all the exclusive rights are mentioned which are granted to proprietor after the registration of trade mark under Trade Mark Act, 1999. In this Section one has to apply in writing for trademark registration in prescribed manner. The application must contain the name of the mark, goods and services, the class under which goods and services fall and the personal details of the applicant such as name and address.
Initially, a Trademark is registered for 10 years but it can be renewed again and again indefinitely.

INFRINGEMENT

Infringement of a trademark in India means a violation of the exclusive rights that are granted to the proprietor registered under the Trademark Act ,1999. Person who uses the trademark of another person is called Infringer.
Section 29 of the Act, when a registered trademark is said to be infringed by any person, who is neither the registered proprietor of the Mark nor being authorized by the owner (registered user). Still uses in the course of trade, a mark which is Identical or Deceptive similar to the mark in relation to goods and services in respect of which the trademark is registered.

TYPES OF TRADEMARK INFRINGEMENT

1.Direct infringement:
An unauthorized person who is aware of the facts of infringement and still uses the unauthorized trademark.
CASES-
Larsen & Toubro Ltd. V. Lachmi Narain Trades. & Ors (L&T and LNT) – In this case the abbreviation of both the firm are similar in pronunciation. It creates confusion but though they are from different industries. Here Defendant has to change its abbreviation.

2. Indirect infringement:
When a person, though not infringing directly, causes another person to infringe on a trademark.

TYPES OF INDIRECT INFRINGEMENT:

Vicarious liability: When a person has the ability to control the actions or deprives a financial benefit from the infringement and has knowledge of the infringement and still contributes to it.
Contributory infringement: When a person is materially contributes or induces the direct infringement to commit the infringement.

REMEDIES/PUNISHMENT

Civil Remedies:

Injunction- stay against the use of mark and ad interim ex-parte injunction
Monetary Compensation – handing over of accounts and profit and plaintiff’s losses
Court- ordered forfeiture or destruction of infringing goods
Pay the plaintiff’s Attorneys’ fees

Criminal Remedies:

Section 103 and Section 104 – Provide for imprisonment for a term not less than six months which may extend up to three years and fine not less than fifty thousand rupees which may extend up to two lakh rupees.
Section 105 – The provision for enhanced punishment is laid down.
Section 27(1) –  No action for infringement can be taken for unregistered trademark.
Section 27(2) – Alternative remedy for unregistered trademark i.e. passing off.
It must fulfill 3 conditions: –
TM has reputation.
There was misrepresentation.
It has caused injury or loss.

CONCLUSION

Trademark act gives exclusive right to owner. It is to protect the Individual right; statutory provisions have been made. When a person gets his trademark registered, he acquires valuable rights by reason of such registration. Registration is not Mandatory. If there is any infringement then a person has two remedies i.e., civil and criminal. It can be transferable to any person after giving license or permission.


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