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Trademark Law in India | Company Vakil
Trademark Law in India

Establishing your business or corporation is not an easy job. It requires endless hard work and heavy financial investments. A lot of people think that once the business is set up, it’s all nice and sorted, however, that is not true; the actual work begins after that. To have your business become a success you have to come up with unique products and services that will appeal to the market. Once you have such a product, you have to create popularity for it. Once you have the popularity you need, your biggest task, yet, begins: maintaining the popularity and ensuring that your competitors don’t take it away.

One way of ensuring this is by having your trademark registered. A trademark is any symbol or visual that you use to distinguish a product or service that belongs to you and your company from the products and services of other companies. Your trademark can be in the form of any label, word, name, device or even a set of numerals. Any intellectual property that a company owns can be protected from infringement and duplicity by others through registration under trademark law in India.

With regard to trademark law from an international perspective, India has several obligations under various treaties and conventions, the most important one being the TRIPS Agreement. These obligations include protection of trademarks, renewal of the marks, distinguishing and recognition of marks, etc.

Globalization made it important for brands to be protected by trademark. Newer laws were required and therefore amendments were made to the Indian Trade and Merchandise Marks Act, 1958. Eventually, after several reviews the Trade Marks Act, 1999 was enforced. Under this Act, provisions have been made for registration, filing multiclass applications, recognition of well-known marks, etc.

WELL-KNOWN TRADEMARK AND TRANSBORDER REPUTATION

In India, the concepts of “Well-Known Trademark” and “Principle of Trans-Border Reputation” have been recognized. The concept of “Well-Known Trademark” with reference to goods and services means any mark that is known to a significant part of the public well enough that if the mark is used on a product, the public will create a connection between the company and the product.

LEGAL REMEDIES AGAINST INFRINGEMENT

When a person violates the rights granted to a trademark owner by virtue of owning the registered trademark, it is known as trademark infringement. Usually, such infringement occurs when a person who is not authorized or permitted uses the trademark or uses a mark which is similar or identical to a registered trademark or is similar enough to deceive the public.

Another such concept under trademark law is known as Passing Off, more commonly used in cases related to the unregistered trademark rights. When one party misappropriates the reputation of a trademark of one party, so as to show that they are its owner, it is known as passing off. In this case, the goodwill of the real owner is affected and here, registration of the said trademark is not relevant.

In Indian law, it is not a pre-requite for a trademark to be registered where a suit is to be filed for criminal or civil action for infringement. In fact, action civil action can be combined with both passing off as well as infringement. Infringement under Indian law is a cognizable offence and the infringers can be proceeded against with criminal liability.

RELIEF TO BE GRANTED IN CASE OF PASSING OFF OR INFRINGEMENT

The most common relief that a court grants under infringement and passing off of registered trademarks is in the form of injunctions. The injunction can be permanent or temporary, depending on the facts of the case. Additionally, damages or the accounts of the profits gained by the infringement can also be awarded to the affected party or delivery of the goods infringing the trademark and cost of the legal proceedings can also be claimed.

OFFENCES AND PENALTIES

Offences for passing off and infringement are punishable with a penalty as well as imprisonment. The term for imprisonment is for a minimum of 6 months, exceeding up to 3 years. The financial penalty has to be at a minimum of Rs. 50,000 exceeding up to Rs. 2,00,000.

REGISTRATION OF TRADEMARK

Under Indian law, registration can be done online through the government portal or through paperwork manually. One can use an IPR lawyer or do so themselves. The basic procedure requires a trademark search to ensure uniqueness of the trademark, filing of the application, verification of objections by trademark officials and third party.

Trademark law in India can be difficult for everybody to follow and apply. The process of trademark registration in India can become confusing. At Company Vakil, we cater to all your trademark related needs. Our employees are well versed in the law of trademark and the trademark registration process. Our team also includes experts who can help you out with all your needs and make your experience extremely easy and hassle-free.

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