Trademark Registration, it does not need any introduction as nowadays it is a well known intellectual property among the entrepreneurs. It is very crucial for the growth of any kind of business. Hence its protection is really important, so that one can take the remedies available for trademark infringement in case any third party tries to infringe one’s trademark.
Under the Trademark Act of 1999, there are many remedies which are available against the trademark infringement. But these are available for those who have protected their trademark. Here in the present write-up will discuss the various remedies against the infringement of the trademark. As an entrepreneur you must go through this blog in order to know about the different types of remedies which are available if any third party breaches your right on your trademark
What is Trademark Registration?
The registration which has been given for the protection of the trademark under the trademark law, is known as trademark registration in India. There are different types of trademark registration in India which includes, word mark, device mark, sound mark, color mark, smell mark, shape of goods, fanciful mark, arbitrary mark, suggestive mark, descriptive mark etc.
The very first step towards the direction of the registration of a trademark is to select the proper mark in order to get registration. Once your trademark is registered, any other third party cannot use the same for their personal interest. If anybody can use the same without your consent it will be considered as the infringement of the trademark registration. And in that case you can take the benefit of the various remedies available for trademark infringement under the Trademark Act of 1999.
Meaning of Trademark
Under section 2(zb) of the Trademark Act of 1999, trademark has been described in detail. In general or simple terms a trademark can be a mark, logo, design, sign etc which is associated with a particular brand or business. Such marks have the capacity to be represented graphically. They disguise the goods and services of one company from the other. They have different packaging and different combinations of words or designs.
What is Trademark Infringement?
Unauthorized use of the registered trademark by any third person who is not the owner of the trademark for his or her personal interest directly or indirectly is called infringement of trademark. Under section 29 of the Trademark Act of 1999, trademark infringement and details regarding the same has been given. As per the trademark law following things will be considered as the infringement of the trademark. There are various remedies available for trademark infringement which we will discuss later in the same blog.
- Use of similar trademark
- Trademark which cause confusion among the public
- Use of deceitful trademark
- Harms the reputation of the registered trademark
- Unauthorized use of the registered trademark
- Use of registered trademark without the consent.
Remedies Available for Trademark Infringement Under the Trademark Law
In case your trademark got infringed by any third party you can avail the following remedies available for trademark infringement under the law of trademark:
Injunction
When the trademark of one party which is registered, used by any third party without consent, then in such case injunction order may be taken by the court by the party whose trademark got infringed. It means taking a stay on the use of such registered trademarks against the party who has been using the mark in an unauthorized way. Injunction can be a temporary injunction or a permanent injunction. Temporary injunction means stay on the use for a short period or particular period of time. By providing an injunction, the court provides a kind of protection to the owner of the registered trademark. Injunction is one of the remedies available for trademark infringement under the law. Hence one can avail it whenever it is needed.
Damages
Out of the various remedies available for trademark infringement, one is damages. One can claim damages against the unauthorized use of the registered trademark. Damages can be claimed as per the loss one has suffered due to the unauthorized use of the registered trademark by the third party. While taking damages for the infringement of the trademark, one can ask for the legal proceeding expenses as well as damages against the mental agony one has to face due to all this. How much damage one can get is not fixed as it is different for different cases.
Criminal Remedies
Trademark infringement is not just a civil wrong. There are many provisions of law under which trademark registration is considered as an offense, against which different types of remedies are available. Even under the Trademark Act of 1999 itself there are several provisions under which it is a criminal wrong. These provisions include section 103, under which imprisonment from 6 months to 3 years can be given. Another provision which is also one of the remedies available for trademark infringement is section 104 of the trademark law. As per this section one who infringe the trademark right may be punished with the fine of minimum Rs 50,000/- which may extend maximum up to Rs. 2 lakhs. There are many more such criminal remedies available for trademark infringement, hence one must think twice before doing any such thing.
Administrative Remedies
With the civil and criminal remedies, administrative remedies are also available for trademark infringement. These remedies can be sought under section 9(1) or section 11 of the Trademark Act of 1999. These remedies can be sought during the time of the trademark registration itself. Publishing a trademark is one of the very important steps while obtaining the registration for a trademark in India. The purpose of this step is to provide the administrative remedy to the one’s whose trademark can be misused by the third party. In this step if any party thinks that the trademark on which registration has been asked is infringing their trademark they can object against the same.
Conclusion
Trademark registration is a pivotal step for brand protection and recognition. The remedies available for trademark infringement under the Trademark Act of 1999 are crucial for safeguarding one’s trademark rights against unauthorized use by third parties. If a registered trademark is misused without consent, there are several remedies available, such as seeking injunctions to halt the unauthorized use temporarily or permanently.
Additionally, remedies include claiming damages for incurred losses, mental anguish, or legal expenses, as well as utilizing criminal provisions under the law with penalties that include fines or imprisonment. Administrative remedies are also present to object to potential infringements during the trademark registration process. These remedies for essential legal safeguards against the unauthorized use of a trademark, emphasizing the significance of securing and defending trademark rights.
