The main purpose of the Trademark is to help people recognize the source of a particular good or services. The source in turn, helps people determine the quality. Quality is what usually consumers base their purchase decision on. This is why a trademark is of utmost importance within the economy. For the consumer a Trademark is of extreme importance in the economy. For the consumer, a Trademark reflects the source and quality of the goods and services.
It is also important that Trademark is not infringed upon. A Trademark represents the brand value of the Trademark owner. Infringement of a Trademark usually, causes a loss of finances and goodwill to the owner of the infringed mark. It is always better to be vigilant and prevent potential infringers from riding on the goodwill and reputation that you established.
What does infringement of Trademark mean?
Trademark Infringement in India is defined under section 29 of the Trademarks Act, 1999. Simply put when an unauthorized person uses a Trademark that’s “identical” or “deceptively” almost like a registered Trademark, it’s referred to as infringement.
Now allow us to take a glance at the constituent elements of infringement of Trademark:
Unauthorized Person– This means that person who is not the owner of the Trademark or has the license of the registered mark.
Identical or deceptively similar mark– The test for determining whether marks are identical or not is by determining whether there is a chance for likelihood of confusion among the public. If the consumers are likely to be confused between the 2 marks then there’s an infringement.
Registered Trademark- you’ll only infringe a registered Trademark. For an unregistered mark, the common law concept of passing off is applied.
Goods/Services- in order to establish infringement even the goods or services of the infringer must be identical with or similar to the goods that the registered Trademark represents.
Any unauthorized use of the exclusive statutory rights of a registered trademark constitutes an infringement.
The infringement explained above is direct infringement. There is another aspect to trademark infringement in India i.e. indirect infringement.
What is indirect infringement of a Trademark
Indirect infringement may be a common law principle that holds accountable not only the direct infringers but also the people that induce the direct infringers to commit the infringement. Indirect infringement is additionally referred to as secondary liability has two categories: contributory infringement and vicarious liability.
A person are going to be responsible for contributory infringement in two circumstances-
- When a person knows of the infringement.
- When an individual materially contributes or induces the direct infringer to commit the infringement.
A person are going to be vicariously liable under the subsequent circumstances-
- When a person has the ability to control the actions of the indirect infringer.
- When an individual derives a financial interest, enjoy the infringement.
- When an individual has knowledge of the infringement and contributes thereto .
Vicarious liability usually applies in the case of the employer-employee relationships and the like. This mentions indirect mention in section 114 of the Trademark Act. According to this section, if a corporation commits an offence under Act then every one who is liable for the corporation are going to be liable. Except an individual who acted in straightness and without knowledge of the infringement.
On the entire indirect infringement occurs when an individual , though not infringing directly, causes another person to infringe on a trademark.
With the growth in the ecommerce industry liability for indirect infringement is extremely important as it holds every involved person accountable.
Thus whether direct or indirect, any sort of trademark infringement in India can attract liability. To avoid infringement of Trademarks, you can contact our Trademark experts to get consultation before launching your Brand or product. We at BIAT Legal LLP serve you with the best.