trademark laws – civil and criminal remedies


Indian trademark law statutorily protects trademarks as per the Trademark Act, 1999 and also under the common law remedy of passing off. The law of trademark deals with the mechanism of registration, protection of trademark and prevention of fraudulent trademark. A trademark is a word, phrase, symbol and or design that identifies and distinguishes the source of the goods of one party from those of others. A trademark is a type of intellectual property consisting of a recognizable sign, design or expression. The trademark owner can be individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself.

Before 1940 there was no law on trademarks in India. It provides better protection of trademark and prevents misuse or fraudulent use of marks on merchandise. The act provides registration of the trademark so that the owner of the trademark may get a legal right for its exclusive use. Trademark is a marketing tool which increases financing of the business. A trademark is not always a brand but the brand is always a trademark. The trademark law was replaced with the Trademark and Merchandise Act, 1958. It provides better protection of trademark and prevents misuse or fraudulent use of marks on merchandise. The Trademark Act, 1999 gives the right to the police to arrest in cases of infringement of the trademark. The act gives a complete definition for the term infringement which is commonly used. It provides penalties and punishments for the offenders.

The overall purpose of trademark law is to prevent unfair competition by protection the use of symbol, word, logo, slogan, design, domain name, etc that uniquely distinguishes the goods or services of a firm. It protects the commercial goodwill of the trader or a company, it helps to find out the origin of the particular goods or services, protect in infringement claims and many such more advantages. There are four types of trademarks namely, certification trademark, collective trademark, service trademark and product trademark.

CIVIL REMEDIES-A federal civil case involves a legal dispute between two or more parties. A civil action begins when a party to a dispute files a complaint, and pays a filing fee required by statute. A civil remedy refers to the remedy that a party has to pay to the victim of a wrong he commits. A civil remedy is generally separate from a criminal remedy. Civil remedies available are as follows:-

  1. Injunctions
  2. Interim injunctions
  3. Damages.

The Trademark Act 1999 protects well known trademarks in two ways:- an action against the registration of similar marks and an action against the misuse of the well known mark. Injunction or authoritative direction by the court of law is a common civil remedy that can be provided with. The two kinds of injunction that can be granted are perpetual and temporary injunction. Perpetual injunction is granted depending on the suit concerned and when the same is supposed to be decreed and therefore is permanent in nature. In case of a temporary injunction, a specific time frame comes into the consideration which in his case will be till the court passes its final orders regarding the matter.  Damages can be claimed by the aggrieved party on grounds that the exclusive right of using the trademark he owns has been ceased. A civil remedy is often claimed handling of the profit accounts along with a command for delivery or removal of the products that have been infringed.

CRIMINAL REMEDIES- If we look at the trademark act of 1999, it can be viewed that there are several provisions that can be counted as a criminal remedy for the infringement of trademark. Section 103 of the act lays down criminal remedy for the contravention of the trademark of any individual or entity which lays down a period of six months of imprisonment which can be extended till a time frame of three years for infringing trademark rights. Section104 of the act talks about penalties that need to be provided as a sanction against an infringement. The section mentions a fine of fifty thousand rupees which can be increased till an extent of two lakhs in case someone is found to transgress the trademark rights. An inflating version of punishment is laid down under section105 of the same act. A seizure of powers of the person liable for infringing can be carried out as a criminal remedy for an efficient adaptation to the above provisions. This procedure carried out by police is subjected to reasonable grounds of proving the infringement only.

 There have been several landmark judgements passed by the courts that stand responsible for changing the destiny of remedies available for trademark infringement and clearly laying down the intention behind the judgements delivered by the court. Few cases or landmark judgements are as follows:-

  1. DM entertainment VS Baby Gift House and ors.
  2. The Coca-Cola Company VS Bisleri International PVT.LTD
  3. Makemytrip PVT.LTD VS Orbit Corporate Leisure Travels.

In India, there is a growing need for registration of trademarks day by day clearly including and indicating the awareness developing among people to safeguard their own products. Trademark infringement is also very common nowadays.

Trademark infringement is a violation of the exclusive rights attaching to a registered trademark without the authorization of the trademark owner or any licensees. In India, the awareness to protect the brand name through register is increasing. However, the owners are still passive about the unauthorised usage of their registered trademark. Violations of the right over trademark can occur even internal to an organisation, which affect the brand value as well as the market share of the owners business. With the help of a trademark attorney one may recover and compensate all the damages occurred due to the infringement.

Trademarks are governed by both state and federal law. Originally, state common law provided the main source of protection for trademarks. In order to serve as a trademark, a mark must be distinctive that is it must be capable of identifying the source of a particular good. Registration of trademarks can be done in a manner that if any person claiming to be the owner of the trademark or supposed to used the trademark by him in future for this he may apply in writing to the appropriate registrar in a prescribed manner. The application must contain the name of the goods, mark and services, class of goods and the service in which it falls. Few other landmark cases and judgements on regards of registration are as follows:-

  1. Hearst Company VS Dalal avenue verbal exchange ltd.
  2. Amritdhara Pharmacy VS Satya Deo Gupta.

Trademark laws states the importance of trademarks and their values required for each and every business to enhance and upgrade the business. Trademarks in today’s world and time have been of an utmost importance as it differentiates one brand, one logo from another thus leaving a mark of each and every brand individually. Trademark laws are also relevantly of utmost importance as each and every law is made for the betterment of the society and for peaceful living of each and every individual, therefore trademark laws helps in better running and friendly relations of each and every businessman amongst themselves with peace and harmony.

As all the laws that have been made up have both good and bad sides, similarly this particular trademark law too has pros and cons along with it. People tend to misuse this and change the law in order to just fit it in their personal respective scenario so that only they can be benefited with it. Trademark law helps each company to have its own personal identity providing them with all the legal rights to promote their brand with that particular design or logo or sign. Any infringement caused under this act is given severe punishments of penalties or imprisonment or sometimes both in few cases. Trademark laws have become very common in today’s era and people tend to have their personal brand logo even in small business enterprises or outlets for the growth and prosperity of the organisation, business.

Earlier when this law was not made then there have been a lot of cases of fraud in this field but since after the amendment of this act people tend to have taken breathe of sigh of reliefs. Trademark law has been made for the betterment of the society and henceforth it should also be used in that manner also. Any sort of fraud done here is directly seen in the court of laws as the rules are quite strict, one cannot simply rob one’s title or entity or their brand name and logo as and when desired.

Trademark laws are made for the betterment of the people so that there occurs no fraud in the field of business and that none can or will steal someone else’s brand name and logo and if found so then will be put behind the bars or will be entitled with penalty once their crimes has been proven. Trademark laws have many advantages as well as disadvantages all vested within them and it depends on the person how they tend to use this law. There are remedies available in case any infringement occurs or takes place and all the help will be done along with damage cost given. But for having a trademark of one’s personal individual use, the trademark which the person is using may be registered and that the company or the individual must have registered the brand name or logo or design under the respected registrar of the region in which the business is to be operated. After the registration is completely done with all the required documents and details then the person individually or the organisation or the company who have applied for the registration of the trademark, the license is given to them and henceforth after this procedure the logo is given to that individual organisation or company and none can claim their rights in the particular trademark.

Therefore in the end, trademark law is the law made for the peaceful running of the business organisation without any kind of fraudulent things taking place and that each and every individual business enterprises runs efficiently and smoothly.

Thank You. Jai Hind.

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