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Trademark

Patent

Design Patent

Copyright

Domain Names

Custom Laws

USPTO : Patent Search

Trademark -Passing Off

A suit for PASSING OFF can be initiated under The Trade Marks Act, 1999 depending on whether the trademark is unregistered, pending registration or registered respectively.
  • Jurisdiction and Venue:

    The suit for passing off and/or infringement can be initiated either in the District Court or in the High Court depending on the valuation of the suit. The suit can be at the place where the rights holder or one of the rights holders actually and voluntarily reside or work for gain or carries on business.
  • Elements of the Complaint:

    In the Complaint the rights holder is required to demonstrate that The alleged infringing act involves a mark that is identical or similar to a trademark of the rights holder; The infringing representation of a the trademark is being used in connection with goods or services and might lead to confusion in public regarding the origin of the infringing goods/services; The unlawful act interfered with the trademark holder's rights of exclusive use or caused the rights holder economic loss
  • Statue of Limitation:

    As a general policy in India, as is prescribed in the Limitation Act, the rights holder has a period of 3 years from the cause of action for filing the suit. However, as trademark infringement is a continuing offence and the infringer violates the exclusive proprietary right of the rights holder every time he commits a discreet infringing act, the infringing period will run anew with each new act. Nevertheless, it is advisable that the legal action be initiated against the infringer as promptly as possible in order to establish the seriousness of the rights holder's intent before the Court.
  • Ex-parte Interim Injunction:

    Most Indian courts will grant ex-parte interim injunctions. Ex-parte interim injunction is a temporary injunction granted without any notice to the infringer restraining him from using the infringing mark during the pendency of the trial. This injunction is normally granted at the early stages of the trial and many a times on the first date of hearing itself, provided that the rights holder is able to establish its rights before the Court and prove the gravity of the offence merits immediate consideration. Appointment of the Local Commissioner: Depending on the facts of the case it is also advisable to ask the Court to appoint a local commissioner on the first date of the hearing who will raid the premises of the infringer where the infringing good are stored in order to seize the goods.
  • Damages:

    There has been a change in the Indian judicial system in recent times with some of the courts granting damages to the rights holders. However, such cases are still few and far between and the amount of damages not substantial. One of the landmark judgments awarding damages for infringement of trademark was the case of Time Incorporated v. Lokesh Srivastava and Anr. {2005 (30) PTC 3 (Del)}. In this matter the Delhi High Court awarded INR 5 lakhs (approximately $12500) in favor of the Plaintiffs and against the Defendants on account of damages to the goodwill and reputation of Time Incorporated. The Court also passed a decree of INR 5 lakhs (approximately $12500) in favor of the Plaintiffs and against the Defendants as punitive and exemplary damages for flagrant infringement of the Plaintiffs trademarks and copyrights by the Defendants.
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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