Introduction
A right tick on the pair of shoes, mermaid on a coffee cup or four intersecting rings on car, without even taking the names of the brand you might have guessed the brands. This is the power of the trademarks. Trademark, is a mark used in trading purpose. Such a mark which helps any business to stand out in the market. Trademark is not a new term for us. Every company, brand or even services have its own trademark. It is evident that to be recognized in a competitive market, an attractive or distinguishable mark is much needed and it can include any shapes, design, combination of colours or any letter or alphabet.
Having a distinct mark for your business plays a significant role for the progress and development of the company and therefore, the registration and protection of the same is equally crucial. Every company should be aware about the rights they possess on their mark and also against it when someone infringes it.
What does this trademark do and why is it so important? What if someone uses it without having the authorized permission and what will be consequences? These are the most common questions which are aroused, and hence under this article we will be dealing with the legal implications and protection of Trademark.
Meaning of Trademark Infringement
Before understanding the provisions of the infringement of trademark, let us understand the same in layman’s term. Consider a company A, having its stores all over the world has a trademark which is recognised by majority of the individuals. Just by the trademark the company gains a lot of profit. Seeing this a local company imitates the trademark with the intention of creating confusion in the minds of the public without the consent of the original owner and it succeeds. This act of the local company, company A suffered a huge loss.
Infringement of trademark is defined under the section 29 of the Trademarks Act, 1999. It states that use of a mark, by an unauthorised or an authorised person or a person who is not the registered proprietor, which is identical or deceptively similar to the trademark in relation to the goods or services in respect of which the trademark is registered.
What leads to Trademark Infringement?
When a trademark is registered the owner is granted exclusive rights to exploit the same. Getting the trademark registered is not mandatory in India. Registration is required as it assists to trace the origin of goods and services, it advertises the product of the Section 29 of the Act defines infringement of trademark. When an unauthorised individual who is not the owner of the registered trademark uses the trademark which is identical or deceptive in nature in his course of business either in the goods or services.
A trademark is said to be infringed in the following circumstances:
- when any person intentionally uses the trademark to create confusion in the minds of consumers and which is already registered,
- if the registered trademark is used partially or wholly in the course of business,
- the trademark is used in labelling and packaging of any goods without the due consent of the owner,
- if the user intents to take the unfair advantage by using the trademark.
Exception to these is mentioned Section 30 of the Act.
Available Remedies
When we talk about the remedies for the infringement of trademark there are two concepts which comes into frame. The protection against the registered and unregistered trademark.
- Protection against a registered trademark: when a trademark is registered, the owner has the right to either file a criminal complaint or a civil suit against the right infringer. Moreover, the Courts have the authority to take action Suo moto in such cases. In the case of a registered trademark, following remedies are available:
- Order for injunction: the Court can pass an Order restricting usage of trademark in an unauthorised manner.
- Damages: damages can be granted by the reason of the losses incurred to the owner due to such unauthorised use.
- Handing over the profits and accounts: the Court can order to hand over all the profits that the user has gained to the original owner.
- Under criminal laws, an FIR can be filed and the infringer will be punished with imprisonment for a period not less than 6 months that may extend to 3 years and with a fine Rs. 50,000/- which may extend to 2 lakhs.
- Furthermore, . Section 34 and 35 of the Trademark Act, 1999 provides the protection of trademarks which are not registered. The intention behind this provision to restrict the unfair use of the trademark along with promoting the business without having the fear of trademark.
The remedies for both the registered and unregistered trademarks are similar.
Case Laws
Coca Cola v/s Bisleri
Maaza was owned by Bisleri but later on the rights for the same were transferred to Coca Cola when it approached Bisleri. Eventually Bisleri started exporting Maaza. When Coca Cola knew about this fact they filed a case for trademark infringement. The Delhi High Court passed an interim injunction, restricting the defendant to use the product in India or abroad.
Starbucks v/s Sardarbaksh
Sardarbaksh was owned an Indian man who sold coffee and the name was intendedly similar to Starbucks, a popular coffee brand due to which the consumers misinterpreted that they belonged to the same owner and hence Starbucks filed a suit for infringement. The Court ordered that using a name similar to a popular brand, amount to trademark infringement.
Izuk Chemical Works v/s Babu Ram Dharam Prakash
In the present case, the plaintiff is a company which dealt with herbal beauty products and had a trademark as “MOONSTAR”. Later the plaintiff company came to know that another company was also working and selling the same products having indistinguishable trademark. Therefore, the Court found the case of infringement prima facie and imposed an order of injunction.
Conclusion
Trademark is granted to the business including both goods and services which represents their business and maintains their reputation. Once the trademarks are registered, all the rights are vested on the applicant/ owner and he can exploit them. Furthermore, enforcement of the rights becomes feasible. Violations of such rights impacts the brand value and market share of the company. Under the Trademarks Act, 1999, all the damages can be recovered which occurred due to the infringement.
