Awarding money as compensation in trademark infringement cases is not always necessary. Ever since marks became important selling devices in the late nineteenth century, the law has recognized two distinct theories of protection: trademark infringement and unfair competition. After publication of the mark and during opposition period any right holder or third party can oppose the mark for registration. These three ways of carrying out administrative remedy is often useful in preventing trademark infringement. Remedies act as a measure for infringement of both the registered as well as unregistered trademarks. The remedies uttered by the court to the Trademark infringer in case of criminal proceedings are as follows: With imprisonment for a period which must not be less than six months and can be extended to three years; With a penalty that should not be less than Rs. Mark, logo, slogan etc., used shall be identical to the original trademark to constitute trademark infringement. If the trademark gets renewed, you can extend the period for an additional 10 years. The monetary awards for an infringement typically cover actual damages, but they may also include lost profits because of the infringement and any profits that the defendant made by using the mark. It provides for what acts constitute passing off and infringement of. Ultimately, the strength of your trademark infringement case depends on three key . Was this document helpful? You can receive a variety of trademark infringement remedies if somebody uses your mark without your permission.3 min read. In contrast, a section 20 infringement action allows a . Courts will calculate a value thats seen as reasonable for a trademark license. When the confusion carries into the court, it is on the plaintiff to prove the infringement of his trademark. While it is possible that an infringer may seek a declaratory judgment after receiving a cease and desist letter, this is exceedingly rare. With respect to trademark infringement, it is restraining a person from unauthorised use of the trademark. Trademark Infringement Remedies. Trademarked content may include a brand name, logo, jingle, or other distinguishing material. The following are laid down below: It has always been observed that criminal remedies are much more relevant compared to that of civil remedies.Along with civil and criminal remedies, administrative remedies are also available as a remedy for the infringement of the trademark. It's expected that the infringer will demonstrate and argue for the decreasing elements. Trademark Infringement Remedies. Individuals who have had their trademark rights infringed upon sue the infringer/defendant in court, and seek some form of remedy to compensate them for the economic injury that they have suffered due to the infringement of their trademark rights. A trademark identifies and distinguishes an individual or company's goods or services from all others. This is the only proof required. If such a situation arises, interrogations are carried out by the examiner upon the trademark registration. 2. Measure for recovery of reputation Criminal remedies to infringement of the trademark 1. In U.S. trademark litigation, the focus is typically on injunctive relief: The plaintiff wants the defendant to cease use of the infringing mark. Section 27(2) of the Trademark Act, 1999 does provide for remedies for unregistered trademarks. A cease and desist letter will often be the most powerful tool at your disposal. Trademark Infringement Shantanu 4th Yr. NLU, Odisha. Hence, ignorance is not welcoming when it comes to infringement of trademarks. Confusion doesnt mean that consumers shouldnt know trademark infringement. When the confusion carries into the court, it is on the plaintiff to prove the infringement of his trademark. Another remedy available to the proprietor of a trade mark is an order for the infringer to pay damages by way of a monetary compensation. Plaintiffs must be very specific when listing the items that should be seized. First, the court will decide if the plaintiff will be able to succeed based on the merits of the case. 15 U.S.C. A trademark registration confers the right to exclusively use the mark and to enforce it against third parties. Unfair advantage or illegal gain means earning something by using the name, resource etc., of another company/business. This must be between true goods and counterfeit sales as you can't assume that the real goods for the trademark would end up being sold, even if no counterfeit items were sold. Parody & the Indian Trademark Regime (Tata Sons Limited v Greenpeace International, (2011) 45 PTC 275) - iPleaders, Trademarks: Infringement, Remedies, & Landmark Cases. Trademark infringement leads to confusion, deception, or a misunderstanding about the actual company from where a product or service came. A business can claim a trademark simply by. This is an exhaustive article which deals with remedies available for any kind of infringement associated with trademarks along with judgements which simplify the same. Product or service should create confusion in the minds of consumers. Published Date: March 16, 2022. The act of any person who shall, without the consent of the owner of a registered trademark, use in commerce, reproduce, counterfeit, copy or imitate a registered trademark or a dominant feature thereof is tantamount to trademark infringement. Import and export of goods under the mark, Civil remedies to infringement of the trademark, Criminal remedies to infringement of the trademark, Landmark Judgments of Trademark Infringement. The proprietor of the Registered Trademark can initiate legitimate proceedings against the infringer expressing unfair business practices. This field is for validation purposes and should be left unchanged. Hence, arises the situation of trademark infringement.Nevertheless, remedies for the same are also available. Destruction and sealing of material 4. Injunctions are court orders that instruct a party to either engage in or cease a specific behavior. In the former case, it acts as an action to initiate the proceedings of infringement in a court of law while in the latter case, it helps in passing off the infringement to the hands of common law. Damages refer to monetary compensation awarded to the person who suffered any wrongful loss because of the act of another person. Before applying for registration, it's important to look at which trademarks have already been registered. Most common causes of trademark infringement include using closely or deceptively similar brand names or logos for associated goods and services and using a mark that creates false impression or confusion with the registered trademark. For questions related to trademark infringement remedies, please contact us today. Copyrights apply to artistic or literary works and grant the authors of that content exclusive rights, such as the right to publicly perform a specific work. His Interest areas are International Law and Commercial Law. The court of competent jurisdiction can give the following remedies [3] if the infringements are successfully proved: Injunction/stay against the use of trade mark; Appropriate Damages; Handing over of accounts and profits; Treble damages allow base awards to be increased by up to three times. Disclaimer: The information on this website is for general information purposes only. Some of the most common legal remedies for trademark infringement include: Monetary compensation. To do so, however, they must meet a higher evidentiary standard. A trademark is any word, letter, name, design, or symbol that is used to identify a particular business, particular goods, or particular services. Trademark shall be used in the management of business or trade to constitute trademark infringement. In contributory infringement, a person will be held liable if he knows the infringement and materially contributed towards inducement. Phone: (858) 487-9300 Click to Contact us, Phone: (949) 474-9330 Click to Contact us, Phone: (310) 656-3900 Click to Contact us, 2018 Mandour & Associates, APC All Rights Reserved Aggressive Intellectual Property Litigators Trademark Attorneys Patent Lawyers Copyright Attorneys. The main exponent of trademark infringement is whether the accuseds use caused a likelihood of confusion in the average customer. When a violation of registered trademarks takes place and it is believed to have been an intentional infringement, a judge may award a plaintiff money from the defendant regarding any lost profits resulting from the infringement. If the infringer continues their misuse, it becomes difficult for them to later claim they were unaware their actions infringed upon your rights. The remedies discussed below are the ones which are adopted according to the facts and circumstances of the case in hand. If the term trademark infringement is broken into two halves with the meaning of trademark already known, what remains is infringement, which signifies violation or contravention. )and start an investigation. A section 19 infringement action allows a registered owner of a trademark to prevent the unauthorized use of an identical trademark with respect to identical goods and services. Follow us onInstagramand subscribe to ourYouTubechannel for more amazing legal content. Do you need legal help with pursuing trademark infringement remedies. The infringement of a trade mark - also written and acknowledged as trademark or trade-mark - relates to the unauthorised use of a registered trade mark by any third party on any goods or services identical with the goods or services specified on the register. In India, there is a growing need for registration of trademarks day by day, clearly indicating the awareness developing among people to safeguard their own products. Trademark, one of the several elements of intellectual property, is one such requirement that has received huge demand due to the meteoric maturing of the industrial sector. There have been several judgements passed by the courts that stand responsible for changing the destiny of remedies available for trademark infringement and clearly laying down the intention behind the judgements delivered by the court. The court may direct such local commissions to destroy infringing material wholly. But knowing the same, the plaintiff carried on their activity till one fine day they filed the suit. 7. Loss of reputability can create harms that last even in the absence of continued infringement. The court may direct the infringer to take measure to restore the reputation of the company/business which suffered because of him. Compensation does not always have to mean an award of money . The concerned court often appoints a local commissioner in order to seal the goods or materials that are infringing in nature as an execution of a civil remedy. Unlike patent, registration of trademark is not necessary. An order awarding damages for trademark infringement can also be passed by the court. Remedies act as a measure for infringement of both the registered as well as unregistered trademarks. The owner of a trademark can take legal action to stop the infringing activity. . The court may also order that the infringing party make reparations for any damage made to the owner's business reputation. Requiring that the defendant add a disclaimer whenever they use an infringing mark is another type of possible injunctive relief. 6.3 If there is a separate register for descriptive marks, what legal rights are conferred by registration therein? As there exists no provision specifying description of passing off, the court relying on precedents declared a compensatory sum of Rs. If the infringed mark was federally registered, attorneys fees would also be available to a successful plaintiff. If willfulness is not required, when is seeking actual damages preferable to seeking an award of the infringer's wrongful . Thus, the owner of an unregistered mark can't act against infringement. An action in trademark infringement can be brought pursuant to sections 19 and 20 of the Trade-marks Act . The plaintiff must also provide reasonable grounds that the defendants mark is most likely leading to puzzlement among the consumers of those goods or services. Share it with your network! Moreover, the mark holder may also be compensated to account for any profits that the infringer made using the mark. The remedies for trademark infringement are a bit more harsh than dilution. This article is written by Oishika Banerji, an undergraduate student currently pursuing B.A.LLB(Hons) from Amity Law School, Amity University Kolkata. 2 lakhs. Injunction or authoritative direction by the court of law is a common civil remedy that can be provided with. Two types of remedies are available to the owner of the product/service in case of unauthorized use of trademarks (trademark infringement) i.e. There are two types of remedy available in case of Infringement of Trademark. Highlighted below are more details about trademark rights and laws, what constitutes infringement, and the punishments that are in place for infringing activity. What Is the Common Ground for Trademark Application Refusal? Even so, the trademark owner is typically required to post a monetary bond to compensate the defendant in case theyre later found not liable. civil and criminal. The trademark owner can file a suit in the district court falling within the local limits under and which have jurisdiction to try the suit. Under California law, any act that (1) causes harm to consumers or (2) provides an unfair competitive advantage to a company could be considered unfair competition. As the world lives in the 21st century, rapid developments are taking place for industries which in turn is leading to the growth in the field of intellectual property rights. This case was indeed remarkable for it made it clear that awareness and knowledge is important before proceeding with a suit. Actual damages can be particularly hard to determine when a brands reputation is accounted for. 1 Lakh to the plaintiff by the defendant. For a consumer, a trademark reflects the source and quality of the goods or services. If we take a look at the Trade Marks Act,1999, it can be viewed that there are several provisions that can be counted as a criminal remedy for the infringement of trademark. Introduction. There are two types of injunctions: temporary and permanent injunctions. Nivetha K. Aug 18, 2022. What Is a Trademark? However, doing so clarifies who has official rights to a marked item and can help with any future litigation. They can also be refused registration. No, there is no separate register for descriptive marks. Using a trademark for packaging or labelling of products is a prima facie act of unauthorized use. With respect to trademark infringement in India, it is preventing a person from unauthorized use of trademark. defendant willfulness, proof of economic harm). When a trademark is used by the person who is not authorized to use it and such use in any manner gives him some profit (either monetary or favour in the market), it will amount to trademark infringement. MONETARY REMEDIES STATUTE -15 USC 1117(a) OVERVIEW (a)PROFITS; DAMAGES AND COSTS; ATTORNEY FEES.When a violation of any right of the registrant of a mark registered in the Patent and Trademark Office, a violation under section 1125(a) or (d) of This practice note sets out the law on infringement of UK and EU trade marks, including defences to infringement, criminal offences relating to trade marks, the forum for enforcement and the remedies available to a trade mark proprietor. It's also not mandatory to register a mark in certain countries. This right is an essential facet of the protection of trademarks. Because trademark law is based on an equitable doctrine, other defenses are also available. Following this, the other factors that are looked into are the marketing skills, advertisement techniques, the intention of the defendant in embracing the mark, the purchasing skills of goods and services among the consumers and so on. Rights and Remedies in Trademark Law: The Curious Distinction Between Trademark Infringement and Unfair Competition . In the matter of trademark infringement, it is a restriction on a person from unauthorized use of the trademark. You can receive a variety of trademark infringement remedies if somebody uses your mark without your permission. Any misuse of a trademark is punishable under federal law, namely, the Lanham Act. Ltd, the Delhi High Court was firm with the fact that if there exists any amount of infringement, then the courts jurisdiction is likely to be present in order to entertain the concerned suit. Indicates that the product's quality hasn't changed. Registered owner can claim for infringement. Remedies for trademark infringement may include lost profits, damages and attorney fees. One of such cases are, DM entertainment v Baby Gift House and ors. The Coca-Cola Company Vs. Bisleri International Pvt. The plaintiff needs to only show evidence of the revenue acquired by the infringer through the infringing activities. An inflating version of punishment is laid down under. In the case of a temporary injunction, a specified time frame comes into the consideration which in this case will be till the court passes its final orders regarding the matter. What Is Trademark Infringement? Want High Quality, Transparent, and Affordable Legal Services? Trademark infringement is when you make unauthorized use of a trademark that is identical or confusingly similar to the trade mark of another person. Civil remedies available in case of trademark infringement are as under: The action of an injunction means stopping one person from doing a particular activity or task by the due process of law (judicial proceedings). The remedies discussed below are the ones which are adopted according to the facts and circumstances of the case in hand. Noncommercial use of a trademark where no gain to the person using it and no loss to the brand or monetary value of the company/business is caused will not constitute trademark infringement. Daily penalties not exceeding $6,000 for continued violations. To receive actual damages, courts will usually require that you prove harm by demonstrating that your customers were deceived or confused. 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