Trademark is registered for the purpose of recognizing the source of a particular goods or services. The source in turn helps people determine the quality of the products. Customers purchase their products on the basis of the quality of product. This is why Trademark is of extreme importance in the economy. For the consumer, a Trademark reflects the quality of the goods or services.
A Trademark represents the brand value of the owner. Therefore, it is important to see whether any third person is infringing the Trademark or not, which could cause financial losses and goodwill of the owner of the Trademark. It is always better to be vigilant and prevent potential infringers from riding on the goodwill and reputation of the trademark owners that they have established in the market.
What does Infringement of Trademark means?
Trademark infringement in India is defined under section 29 of the Trademarks Act, 1999 which states that “whenever there is an unauthorized use of the Trademark which is deceptively similar or identical to a registered Trademark, then it is considered as infringement of a Trademark
Now, let us take a look at the constituent elements of Infringement of trademark i.e. direct infringement of a Trademark are as follows-
- Unauthorized person: an unauthorized person is a person who is not a licensee or the owner of the registered Trademark.
- Identical or Deceptively Similar- Whether the product is identical or not is determined by whether there is a likelihood of confusion amongst the public or not. If there is confusion amongst the public between the two marks then there is likelihood of infringement.
- Registered Trademark- Infringement could be done of only registered Trademark, and if it is done of an unregistered Trademark then the common law concept of passing off will apply.
- Goods/ Services- To establish infringement goods and services of both the parties should be the same.
Any unauthorized use of the exclusive statutory rights of a registered trademark constitutes infringement.
What is indirect infringement of a Trademark?
Indirect infringement is an infringement that is not caused directly, it causes another person to infringe upon the trademark. Indirect infringement is a common law principle which not only holds accountable the direct infringers but also the people who induce the direct infringers to commit the infringement.
There are two categories of direct infringement i.e. contributory infringement and Vicarious Liability-
A person is liable for contributory infringement under two circumstances-
- When a person is having knowledge of an infringement.
- When a person materially induces the direct infringer to commit the infringement.
A person is vicariously liable under following circumstances-
- When the person has the ability to control the actions of the direct infringer.
- When a person derives a financial benefit from the infringement.
- When a person has knowledge of the infringement and contributes to it.
Vicarious liability is usually applied in the case of employer employee relationships.
Therefore, whether direct or indirect, any form of infringement involves legal proceedings and attracts liability towards the infringer. Therefore it is always advisable to get expert assistance to avoid any kind of hindrance while getting the Trademark registered.