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Trademark

Patent

Design Patent

Copyright

Domain Names

Custom Laws

USPTO : Patent Search

Trademark - Enforcement & Remedies

Infringement

A registered trademark is infringed under the listed circumstances:
  • If a mark which is identical with, or deceptively similar to, the registered trademark is used in relation to the same or similar goods or services;
  • If the use of the identical/similar mark for identical/similar goods or services is likely to cause confusion on the part of the public, or which is likely to have an association with the registered trademark;
  • If the use of the identical/similar mark for different goods or services is likely to take unfair advantage of or be detrimental to the reputation of the registered trademark in India, cause confusion on the part of the public or which is likely to have an association with the registered trademark;
  • If a third party uses the registered trademark, as his trade name or part of his trade name, or name of his business concern or part of the name, of his business concern for goods or services in respect of which the trademark is registered;
  • If the registered trademark is applied to a material intended to be used for labeling or packaging goods, as a business paper, or for advertising goods or services, provided such person was not duly authorized by the proprietor of the trademark to do so;
  • If a trademark is advertised and if (a) it takes unfair advantage of and is contrary to honest practices in industrial or commercial matters; or (b) is detrimental to its distinctive character; or (c) is against the reputation of the trademark.
  • If the distinctive element of a registered trademark consist of or includes words, and another mark creates consumer confusion when spoken or visually represented
Being a signatory to the Paris Convention and TRIPS, the India recognizes the concept of a well-known mark. A mark, which has been designated as a well-known mark, is accorded stronger protection because of this status. Under the provisions of The Trade Marks Act, 1999, the factors that go into determining whether a trademark is a well-known mark are as follows:
  • The knowledge or recognition of that trademark in the relevant section of the public including knowledge in India obtained as a result of promotion of the trademark;
  • The duration, extent and geographical area of any use of that trademark;
  • The duration, extent and geographical area of any promotion of the trademark, including advertising or publicity and presentation, at fairs or exhibition of the goods or services to which the trademark applies;
  • The duration and geographical area of any registration of or any publication for registration of that trademark under this Act to the extent they reflect the use or recognition of the trademark;
  • The record of successful enforcement of the rights in that trademark, in particular, the extent to which the trademark has been recognized as a well-known trademark by any court or Registrar under that record.

Intellectual Property Appellate Board

Though under the provisions of the Trade Marks Act, 1999 the Registrar of Trade Marks is required to maintain a register of the marks that have been designated, as well-known trademark, the Registrar of Trade Marks has not yet commenced this. It is expected that this register will be extremely helpful to rights holder.
The Trade Marks Act, 1999 provides for both civil and criminal remedies. With the coming in force of the Act, a new appellate body known as the Intellectual Property Appellate Board has been created. Appeals from the Office of the Controller General of Patents, Trade Marks, Industrial Designs and Geographical Indications now go to the Appellate Board instead of the High Courts. This has been done with the purpose to reducing the backlog of cases and for increasing IP expertise at the Appellate level.

Civil Litigation

See Passing off section.

Criminal Litigation

The police have the power to suo moto conduct raids and seizure operations. However, the use of such powers by the police is minimal.
Under the criminal laws, should the rights holder not be aware of the details (name, address, dates of infringement, etc.) of the infringers, it is advisable to procure a general search and seizure warrant from the local magistrate and thereafter organize search and seizure operations in that area.
In the alternative, should the rights holder be aware of the details of the infringer a complaint can be lodged with the police authorities and raids organized accordingly.
In a criminal proceeding the litigation is between the State and the infringer and therefore the rights holder has a limited role to play. The maximum imprisonment that an infringer can get under The Trade Marks Act, 1999 is up to 3 years with a fine of up to INR three lakhs (approximately $ 7140). However criminal sentences are rare.

Customs Laws

See details under Custom law section.
Trademark
Enforcement & Remedies
Passing Off
How to register
What not to register
What to consider
Patent
Enforcement & Remedies
Ancilliary Work
Compulsory Licenses
How to register
What not to register
What to consider
Design Patent
Enforcement & Remedies
How to register
What to register
Copyright
Enforcement & Remedies
How to register
What to register
Domain Names
Enforcement & Remedies
How to register
What to consider
Custom Laws
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