Author- Jyotiska Borah
Introduction
You as an individual have different traits like physical structure, strength, nature, voice, race, and nationality to identify and differentiate yourself from others but how an idea in the form of a product or a service differentiates itself because the idea is something which came from necessity or demand and nature. It could be identical coincidentally or can be copied by others.
So, to protect us from those situations trademark laws are there. But what if someone violates those laws? Is trademark infringement a cognizable or non-cognizable offence? What is the gravity of the situation when someone violates those laws? Is this a civil or criminal offence?
Let’s take the example of a very popular web service provider company.
Yahoo.com was registered by Yahoo Inc in1995. The trademark “Yahoo” owns legal status in 65 countries but not in India.
The defendant, i.e. Akash Arora, started to provide the same services provided by Yahoo.com under the name “Yahoo India”. Yahoo Inc had sued them in the accusation of using a trademark identical to its service and possessing their domain name as Yahoo India aspired to cash on the reputation earned by Yahoo Inc.
The judgment of the court States that if the value of the brand name is similar to the name of another company, the masses are likely to get confused by using such a brand name. This can affect the consumer’s purchasing decisions.
And the judgement was passed in favour of the plaintiff (yahoo. inc). which restricts the defendant from carrying out any business in any manner under this trademark “yahoo India”.
As we can see the gravity of the trademark infringement situation. It can damage your company and the years of hard work to build the company.
Trademark infringement is a cognizable offence. This means according to the Section 115 (4) of the Trademark Act, 1999, Police can register FIR, investigate It or even arrest the infringer. It can be a civil or criminal offence.
Who is responsible for proving infringement of a registered trademark?
The principal infringer and also anyone that contributes to the act. In the above case the defendant, i.e. Akash Arora.
What must a plaintiff prove in a trademark infringement case?
The plaintiff has to prove that Defendant had used the mark in an unauthorized manner. In this case, the trademark is causing confusion or deception in the public as to the origin of the web service.
In the case of a civil suit
The court can undertake the following remedies
- Temporary injunction
- Permanent injunction
- Damages
- Destruction of unauthorisedly trademarked goods
In the case of a criminal suit
- In Sections 103 and 104 of the Trademark Act, 1999. Imprisonment (min 6 months to max 3 years)
- Fine (min 50,000 rupees to max 2 lakh rupees)
Trademark infringement in India is defined in Section 29 of The Trade Marks Act, 1999.
Where to file a suit related to trademark infringement?
In the District Court. According to the Supreme Court of India, the suits against infringement of trademark and copyright can be instituted only in the District Court.
According to section 190 of the Code of Criminal Procedure, 1973. The aggrieved party can file a complaint before the Magistrate.
Conclusion
The major increase in trademark infringement due to globalisation, due to which competition between companies increases and it becomes tougher to establish a successful brand. Trademarks infringement increases to mislead the customers to sell their products which have the same trademark. That’s why there are many fake products available on Amazon. It is very tough to differentiate between the original and the fake product. If companies have a registered trademark –
Then no one can use their mark for any purpose without permission.
The main reasons why a trademark is usually infringed are:
· creating confusion in the consumer’s minds.
· To damage the reputation of a competitor.
If your company has a long-term goal, it is very important to take trademark-related issues seriously. It can help you to build a reputed brand in the market and also can generate a source of income. If it is used as a business strategy, it can help you to grow your business. It builds the consumer’s trust, through which you can build a very loyal consumer base for your company.
