There are many types of lawsuits which you can file before the court of law. One such type is trademark infringement lawsuits which can be filed against the violation of one’s intellectual property right over a trademark. Trademark is an intellectual property whose protection is important so that any other third party cannot use the same or in case somebody uses it you can raise action against the same.
Types of Trademark Violations in India
The two distinct kinds of trademark infringement are as follows:
Direct Infringement
Here the mark which is used by the third party has deceptiveness and the customers can be confused by the same. Class similarity also comes under the category of the direct infringement of the trademark. Key elements of the direct infringements included the following but remember that it is not the exhaustive list of the same:
- Unauthorized use of the registered trademark
- Identity as well as similarity which is deceptive in nature
- Infringement on the basis of the goods and services classification
- Use of registered trademark by the third party
Indirect Infringement
It is the second form of trademark infringement given under the trademark laws. Although it is not mentioned directly under the law of trademark it is the part of the trademark infringement and one can be held liable for the indirect infringements as well under the universal liability principle of the trademark law. Indirect infringement can be based on the two things which are:
- Vicarious liability
- Contributory Infringement
Process to File Trademark Infringement Lawsuits in India
In India, you can file trademark infringement lawsuits by following the steps listed below:
Consult with a Trademark Attorney
Hire a trademark lawyer and take his advice on what you should do in case your trademark has been used by any third party without your consent. Sometimes by negotiating they resolve the case and there will be no requirement of the lawsuits. But sometimes you have to file trademark infringement lawsuits without which you cannot protect your right, in both scenarios an experienced trademark lawyer will be required.
Send Notice
Now after the above two steps it’s necessary to let the other party who has used your trademark without your permission know that he or she has violated your trademark registration and now you are going to take legal action against them for the same. Also you can ask them for a mediation or negotiation by the same legal notice.
Mediation or Negotiation
If after the above step, the party who had violated your right is ready to do mediation or negotiation, go for the same. In this mediation or negotiation proceedings you can ask them for not using your trademark and also claim the damages which you have suffered due to the infringement of the trademark till now. If they are ready on your terms and conditions then there will be no requirement of the trademark infringement lawsuits . But if they are not agreeing then you have to take the matter to court.
Prepare Legal Documents
The very first step to move your case in the court of law is to draft well researched legal documents through which you can futile trademark infringement lawsuits in the court of law. Your legal documents must be drafted very carefully because the entire case of the infringement will depend on these papers.
File the Lawsuit
Once the above all steps are completed now you come to the final stage where you are ready to file trademark infringement lawsuits before the court of law. Before filing the papers make sure you have read all the documents carefully which are drafted by your attorney. Make sure whatever remedy you want is there in the papers. Once the case will be filed you have to go through the following stages:
- Service of Summons
- Defendant’s Response
- Discovery Process
- Settlement Discussions
- Judgment
Penalties for Trademark Infringement in India
The following are some examples of punishments for trademark infringement:
Criminal Consequences
In the criminal law against the violation of the law one has to face punishment. Likewise with regard to trademark infringement. If someone violates another party’s trademark, they may be sentenced to a minimum of six months in jail and a maximum of three years in prison. Also he or she may have to face the monetary penalty of minimum Rs. 50000 to maximum Rs. 2 lakhs.
Civil Consequences
In civil suits, the court basically tries to make the loss of the other person good. Here the purpose is not to punish but to make the loss of the person good. Mostly in civil cases damages have been recovered in the form of compensation. Some of the common civil remedies which are available for the infringement of the trademark can includes the following but remember that it is not the exhaustive list of the same:
- Temporary Injunction
- Permanent Injunction
- Damages or compensation
- Accounts of profits
- Destruction of goods
- Cost of legal proceedings etc
Conclusion
In order to proceed in the direction of filing trademark infringement lawsuits , you must first research about the same or you can consult with an attorney and confirm whether you actually need to file a suit or not. It has been suggested because many times your issue will be resolved by negotiation or meditation which is quite simple and smoother than the court proceedings. It will save your time as well as effort.
