The IP Authority in India has divided trademark infringement into the following two categories:
- Direct Infringement of Trademark
- Indirect Infringement of Trademark
We have discussed both these types of Trademark Infringement in-depth in this article.
Direct Trademark Infringement
The Trademark Act has defined the Direct Trademark Infringement under Section 29. As per the section, there are the following conditions that justify the obvious reasons for Infringement:
Authorized Trademark used by an Unauthorized Entity
In this case, the Trademark is considered infringed upon only if an unauthorized person uses the registered Trademark. In other words, a person that doesn’t have permission to use the Trademark. Therefore, if an authorized is using the brand name, there would not be considered any case of Infringement in India. Read More: Trademark Renewal
Deceptively Identical Trademark
Here, the Trademark in usage can either be deceptively similar or identical to the existing Trademark in India. The term “deceptive” means that a common customer may get confused between similar brands and may think of them as the same. Within the legal context, the word “may” is enough to prove that there is a possibility of Infringement if the brand name is too similar. Even a mere chance of misrecognition can be damaging to the brand. And thus, identical or deceptively similar trademarks fall under the direct infringement category.
Applicability of a Registered Trademark
All the legal remedies of trademark infringement mentioned under the Direct Infringement of Trademark are only meant for a registered trademark. Thus, these rules won’t be applied in the case of an unregistered trademark.
Goods or Services class
This trademark rules violation occurs when the unauthorized user leverages the Trademark to sell goods and services of the class under which the RoT registers the Trademark.
These are all direct cases of infringements. They are almost always visible and easy to go after. However, there is another class of infringement cases where the crime isn’t so direct. Such cases of referred to us as indirect trademark infringement cases in India.
Indirect Trademark Infringement
The Trademark Act 1999 defines the Indirect Infringement of a trademark as a kind of counterfeiting for which no provisions are detailed in the Trademark Act. The IPR courts serves the universal principle while dealing with Indirect Infringement cases. According to these principles, not only the infringer but also the person or the body of persons that induces the Infringement is accountable. Read More: Trademark Restoration
The following are the types of Indirect Trademark infringement prevalent in India:
Vicarious Liability
The Trademark Act defines Vicarious Liability as a company accused of committing the infringement action on a registered trademark. By this, the Act means that a company, as a whole, must bear the responsibility if any of its personnel commits an act of Infringement in India. The Authority will count the personnel’s Act as the indirect Infringement of trademarks. But, the whole organization must bear the infringement penalties in India, per the rules.
Some of the essential elements of Vicarious Liability as per the Trademark Registration rules are as follows:
- Awareness among the company personnel about the Infringement
- The culprit members who committed the Act of Infringement
- The company that persuaded or induced the principal infringer into committing the Act
The law spares no one when it comes to intellectual theft. In many claims, infringer have promised to act in good faith when committing infringement of brand. However, in the purview of the Law, anyone who contributes to infringement is held equal responsible irrespective of the good faith they promise while using someone else’s property.
Infringement by Contribution(s)
Infringement by Contribution refers to the kind of Indirect Infringement in which the infringer has, directly or indirectly, contributed to the Act of Infringement. There are different elements to Contributory Infringement, which we are enlisting below:
- Person aware of the Act of Infringement
- Person contributes to the Act of Infringement
- Company has cajoled the principal infringer into committing the Infringement
There are different cases of Trademark Infringement prevalent in the country. If you want to know about them, then read this article carefully. Read More: FEMA Consultant