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trademark registration in india

Trademark Infringement


If a party owns the rights to a particular trademark, that party can sue subsequent parties for trademark infringement. The standard is “likelihood of confusion.” To be more specific, the use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including:

1. The strength of the mark;
2. The proximity of the goods;
3. The similarity of the marks;
4. Evidence of actual confusion;
5. The similarity of marketing channels used;
6. The degree of caution exercised by the typical purchaser;
7. The defendant’s intent.

There are two types of remedies available for the infringement of Trademark. These remedies are:-
1. Infringement Action: An action for infringement, which is a statutory right, is dependent on the validity of the registration of the mark. Infringement of a Trademark is a violation of property rights. Trademark registration is prima facie proof of ownership of the mark. In case of infringement there is often no need to prove that your Trademark has a reputation or goodwill. The question of fraud or the probability of deception is immaterial, the plaintiff just have to prove that he is the true owner of the Trademark and the defendant is using a mark that is identical or deceptively similar to the registered mark and no further proof is required. The jurisdiction and procedure, in infringement suit, is governed by the Civil Procedure Code. The period of limitation for filing the suit for infringement is three years from the date of infringement. The relief and remedy in infringement proceedings include:-
Injunction;
Restraining the future use of the mark;
Damages or on account of profits;
Order for delivery of the infringing labels and marks for destruction;
Seizure and confiscation of the infringing goods by the police department;
Arrest of the infringers;
Fines and penalties.

2. Passing Off: An action of passing off is a direct subject matter of the law of tort or common law of right. Passing off is not defined in The Trade and Merchandise Marks Act, but it provides the rules of procedure and the remedies available. In the case of unregistered yet well known marks, the owner of the mark can initiate a passing off action in the appropriate Court of law. The cause of action in favour of the plaintiff will arise if the defendant in the course of trade misrepresents to prospective or ultimate customers of goods and services and the goods or services of the defendant is connected to the goods or services of the plaintiff and is calculated to injure the business or goodwill of the plaintiff and which actually causes damages to the business or goodwill of the plaintiff. Actual deception and actual damage has to be proved for any relief. Passing off action can only be initiated in a place where the defendant resides or carries on business or where any part of the cause of action arose.

We are comprised of experienced, capable and dedicated Legal Professionals, Trademark Consultants, Trademark Law Attorneys and Trademark Agents enabling us to provide best Trademark services. We are working in collaboration with many renowned law firms and eminent lawyers. Our underlying belief in being transparent, candid and interactive with the client has earned us many satisfying clients across the country.

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