Trade Mark
Infringement Law India
Infringement
of a trade mark occurs if a person other than the registered
proprietor in the course of trade, in relation to the same good or
services for which the mark is registered,
uses the same mark or a deceptively similar mark.
Essential of Infringement
The taking of any essential feature of the mark of taking the
whole of the mark and then making a few additions and alteration
would constitute infringement.
The infringement mark must be used in the course of trade, i.e in
a regular trade wherein the proprietor of the mark is engaged.
The use of the infringement mark must be printed or usual any oral
use of the trade mark is not infringement.
Any or all of the above act would constitute infringement if the
same is done in such manner as to sender the used to the mark
likely to be taken as being used as a trade mark.
Forms of Infringement
A registered trade mark is infringed if used in the course of
trade by the person other than the registered proprietor or
permitted user of trade mark. The infringement occurs because such
mark used by the one other the registered proprietor or permitted
user is likely to cause confusion in the mind of public or is
likely to cause impression of association with the registered
trade mark and such confusion is caused because of the identity of
such mark with the registered trade mark with the registered trade
mark as also the similarity of goods of services covered by such
registered trade mark. Such confusion can also occur because of
the similarity of such mark to the registered trade mark and the
identity or similarity of goods or services covered by such
registered trade mark. the confusion would also be caused because
a such marks identity with the registered trade mark as well the
identity of goods or services covered by such registered trade
marks.
In case where the infringing mark in identical with the registered
trade mark and the goods or services are also identical with the
goods or services covered by the registered trade mark the court
shall presume that such mark is likely to cause confusion of the
part of the public.
Infringement of a registered trade mark would also occur is the
person who is not registered proprietor or a permitted user of
registered trade mark uses in the course of trade a mark which an
identical or similar to the registered trade mark.
Infringement also would occur if such a person uses a mark which
is used in relation to goods and services which are not similar to
those for which the trade mark is registered.
Infringement would also occur if the registered trade mark has
acquired a reputation in India and the uses of such mark or a mark
identical or similar to it without due cause takes unfair
advantage of or is detrimental to the distinctive chartered or
repute of the registered trade mark.
A registered trade mark is also infringed by a person if he uses
such Registered trade mark as his trade mark or part of his trade
name, or name of his business concern or part of such name dealing
is goods or services is respect of which the trade mark is
registered.
For the infringement described above a person will be considered
as using a registered trade mark if he in particular affixes it to
goods or packaging thereof or offers or exposes goods for sale,
puts them on the market or stock them for such purpose under the
registered trade mark on offers or for such purpose under the
registered trade mark or offers supplies services under the
registered trade mark.
Such person would also be treated as using the registered trade
mark if he import or export goods under such mark or uses such
registered trade mark or uses such registered trade mark on his
business paper or in advertisement.
A registered trade mark is also infringed by a person who applies
such trade mark to a material intended to the used for labeling or
packaging goods, as a business paper or it is used for advertising
goods or services provided that when he applied the mark in such
manner , new or head reason to believe that such application of
the mark was not duly authorized by the proprietor or a licencee
of the registered trade mark.
A registered trade mark is also infringed by any advertising of
that trade mark if such advertising takes unfair advantage of an
is country to honest practice in industrial or commercial matters.
Also if it is detrimental to the distinctive character of the
registered trade mark also if it is against the reputation of the
registered trade mark.
A registered trade mark will also be infringed by the spoken use
of words as well as by their visual representation in cases where
the distinctive element of a registered trade mark consist of or
include such works.
Using a deceptively similar mark
The infringement that deception or confusion has been caused may
arise in the following ways:-
1. Deception or confusion as to goods- A person may buy the goods
seeing one mark thinking that it is the brand, which in his mind,
which in fact not the case. This is the most common type of
confusion or deception.
2. Deception or confusion as to trade origin- A person looking at
a mark may buy the goods thinking that it is coming from the same
source as some other goods bearing a similar mark with which he is
familiar. This is deception or confusion as to trade source.
3. Deception or confusion as to trade connection- A person looking
at the mark may not think that it is the same as one with a
deferent brand in his mind but the similarity may make him believe
that the two are in some way or other connected with each other.
The use of the mark might give rise to a brief in the purchasers,
mind of there being some connection with the goods and the owner
of the registered trade mark.
