A Trademark is a symbol, word or phrase that identifies the source of a product or service. Trademarks are valuable business assets that help consumers distinguish a particular brand in the marketplace. Trademark violations can diminish a brand’s value and popularity, costing a business sales and profit. A lawful owner of a registered trademark can protect that trademark by bringing a civil lawsuit. Civil litigation penalties for trademark violation include injunctions and monetary damages.

When will it be not considered as Infringement?

To prove innocence, the defendant must prove that such usage is in line with the honest commercial/industrial practices, and does not take unfair advantage of the repute of the trademark. To prove the above, the following pointers help in understanding when a trademark is not infringed and can be used–

• the use also specifies the “kind, quality, quantity, intended purpose, value, geographical origin, the time of production of goods or the rendering of services.”
• The registration does not extend to the use of the trademark when the registration is subject to any conditions/limitations.
• The registered proprietor/user had allowed such use of the trademark or if the use is intended to indicate such usage by the registered user/proprietor himself.
• Neither the purpose nor the effect of the use of the trademark is to signify any connection with the registered good/service.

It is to be noted that there can be no Infringement of an unregistered trademark, for only upon registration does the user/proprietor receive the exclusive right to use the trademark for their goods or services.

Penalties for Infringement of Trademark

Registration of a trademark is not a prerequisite to institute civil or criminal proceedings against violation of trademarks in India. Significantly, infringement of a trademark is a cognizable offence and criminal proceedings can be initiated against the infringers. Such enforcement provisions are expected to encourage the protection of marks in India and limit infringement of trademarks.

The relief which a court may usually grant in a suit for infringement or passing off includes a permanent and interim injunction, damages or account of profits, delivery of the infringing goods for destruction and cost of the legal proceedings.

The order of interim injunction may be passed ex parte or after notice. The Interim reliefs in the suit may also include an order for:

• Appointment of a local commissioner, which is akin to an “Anton Pillar Order”, for search, seizure and preservation of infringing goods, account books and preparation of the inventory, etc.
• Restraining the infringer from disposing of or dealing with the assets in a manner which may adversely affect plaintiff’s ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.

In case of a criminal action for infringement or passing off, the offence is punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and fine which shall not be less than INR 50,000 but may extend to INR 2,00,000.

In many cases, if circumstances so warrant, the courts can impose punitive/exemplary damages on the parties also.

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