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Illegal use of a trademark, such as by using an almost similar mark, or a common tagline on rival or related goods and services will be called a trademark infringement. An infringement would occur only in the case of a registered trademark. It will be a violation of the exclusive rights to use such marks which are similar to the trademarks without the consent of the owner or any licensees. Having a registered trademark would imply the ownership of the corporation of the design and also symbolising the reputation of a company or brand. Illegal usage of the goodwill by using a false trademark is called trademark infringement. 

This article explains the numerous scenarios where an infringement of trademark could take place including the remedies against such acts. In order to ensure that you will not face such problems in the future, it is advised that you get your trademark registered, also for further information on the subject, you must seek proper legal assistance from an experienced  IP lawyer.

Acts leading up to to trademark infringement-

Section 29 of Trademark Act of 1999, provides for provisions related to trademarks. Explained below are some of the situations which shall amount to trademark infringement-

• A registered trademark would be any distinctive mark or sign, for example a logo, slogan, word, or taste, of which a person, company, or business is the owner of by fulfilling the legal conditions  provided under The Trademark Act of 1999. Trademarks which are not registered are not generally actionable.
• Used in the course of trade The right regarding the infringement of trademark would not apply to non-commercial use of such trademark, for in such a situation,  no benefit would be there to the user and no harm would be caused to the company’s brand or financial value. 
• Similarity and Identity For an act to be considered as infringement of the trademark, i.e. the mark, logo, slogan, etc., used in the act, must be identical to the original trademark. 
• Confusion in consumers’ minds A confusion in the minds of consumers should be caused by such a product or service. It would be trademark infringement even when the consumer is aware that a product or service is a copycat, but still chooses it anyway due to similar appearance as well as the fake brand value which is attached to the product 
• Unfair advantages If one gains profit by using the name, resource, etc. of any other company or business, such an act would be known as an unfair advantage or an illegal gain. A person will risk gaining unfair advantage when he or she uses a registered trademark as their business name or part of it. 
• Packaging or labelling Using similar packing or labelling would be covered under the trademark infringement. Any such act will be trademark infringement as it demonstrates the intent of the wrongdoer.
• When goods are exported or imported under some registered trademark, buyers and sellers have trust in the company or organisation whose trademark is being used. Hence, any unauthorised import or export by having misused a trademark which was registered  previously shall be considered trademark infringement. 

Civil remedies in case of a trademark infringement 

In case there has been an unlawful use of trademarks, the owner of the goods or service would be entitled to both civil and criminal remedies. In the event of trademark infringement, following civil remedies could be applied for: 

Injunction

The court has the authority of issuing an injunction order in order to stop someone from using the trademark in question in the future. The court can also issue a temporary injunction to prevent the accused from using a trademark during the course of the proceedings.

Damages

Compensations awarded to someone who suffered an unjustifiable loss caused due to the actions of another person. The main objective to file a civil suit is mainly to recover damages. The court may issue a judgement offering damages in case of a trademark infringement as well. 

Destruction of the material and sealing

With violation of trademark law, the court may appoint a local commissioner in order to seal the related documents and accounts. The local commissions can also be ordered to completely destroy any infringing material.

Action to restore reputation

In case of infringement of  trademark, the court may order the wrongdoer to repair the damage he caused to the reputation of the company or business. 

Criminal penalties in case of trademark infringement

As per the Trademark Act of 1999, trademark infringement is a cognizable offence, and the police have been authorised to record a First Information Report (F.I.R.) and initiate investigation for the same. For further information on the subject, it is advised that you seek legal guidance from experienced ip lawyers.

• Limitation Period Since trademark infringement is a continuous crime, there is no time limit on when to file a lawsuit. 
• Jurisdiction As per section 134 of the Trademarks Act of 1999, jurisdiction for a lawsuit about the trademark infringement will be determined. No lawsuit for trademark infringement will be filed in a court which is lower than the district court. 

Lead India offers you a team of experienced advocates who have been successfully handling cases related to intellectual property rights such as trademarks, copyrights, etc. as well as for other provisions of law involving civil or criminal matters. Hence, if you wish to talk to lawyer or seek free legal advice online, you may contact us.