Trademark infringement is a crime that occurs when a person uses a trademark that is deceptively similar to straight up copies another individual’s already registered trademark without the permission of the owner.
In this modern financial society, where branding is everything, Trademarks have evolved into one of the most sought after Intellectual properties. However, this IP is also a double edged sword, mostly because it has as many people to looking forward to register it as many people to steal it. Therefore, the Trademark Act of India has been placed in order to protect the mark wielders against the mark infringers.
Therefore, the article that is presented here is not merely a section that provides you with the punishments that can happen to the infringement, it is also a warning, to you if you are even thinking about infringing someone else’s trademark.
What is Trademark Infringement?
Trademark infringement is a crime that occurs when a person uses a trademark that is deceptively similar to straight up copies another individual’s already registered trademark without the permission of the owner. The standards to check for such a thievery are as follows:
- The mark closely resembles the mark of another individual and offers the same service as the trademark owner.
- Creation of a mark that can create a confusion among the customers with the mark that already been registered.
The matter of proof:
Before we dive into the punishment that can be bestowed upon the individuals of the mark, it is first needed to be proven that the symbol is indeed been stolen. To that end, the true owners of the mark can show that the infringer is partaking in the same business as they are. Furthermore, infringement proceedings are not only to be brought to the infringer, for the true owners can only show that the infringer is partaking in the same business practices. If these practices are likely to cause customer confusion, then it is proved that the mark is being stolen and misused by the other.
It should be the right people who need to get punished:
When it comes to the matter of penalty, we should be careful who we point our fingers to. Therefore, you should know what sort of person should be deemed as an unauthorized use of trademark.
- A person who is not the proprietor of the mark or has been using a mark that is deemed deceptively similar.
- An individual who is falsifying a genuine trademark through any of the following methods:
- Making modifications to the original mark
- Making extra additions to the original ark
- Making their symbol noticeable by using the registered mark the platform.
An individual is deemed to be false fully applying for the goods and services trademark is:
- Of the individual applies for a mark without the knowledge of the original owner or applies for trademark that are deceptively similar in every way
- If the individual uses the package of another trademark owner to market their own products.
Confusing a bit, yes! But dig a bit deeper and you would comprehend the true meaning of it.
The Matter of Punishment:
When there a matter of punishment for trademark infringement, there are multiple stages where crime can be committed:
There is the matter of applying for an unauthorized trademark, in which you can be considered a culprit, if you:
- You falsify any trademark
- You falsely apply for any goods and services for a trademark that has already been registered.
- If you are in possession is anything like dye, block, machine, plate or any other instrument for the purpose of falsifying trademark
- If your description of goods and services associated with the mark is wrong.
- If the application of the mark registration entails the name of a country or a place to be entered and wrong place or country has been entered there, you would be deemed an unauthorized applicant.
- If you modify, make changes to or efface any indication of origin that has been applied to the trademark that is required.
The punishment for any of the above offences is about 3 years of imprisonment maximum and minimum of 3 months of imprisonment. Additionally, there would be an additional fine of fifty thousand rupees what may or may not extend up to 2 lakhs rupees.
There is a matter of selling goods and services under an unauthorized trademark
Any individual, who hires, sells or has possession of things and services to sell, under an unauthorized trademark is punishable to imprisonment for not less than 6 months, with the maximum jail term up to 3 years. Additionally, a fine can also be imposed on the culprit with no less than 50 thousand and with maximum of 2 lakhs. However, the individual shall not be punishable in case they prove the following:
- They have taken all the necessary precautions against committing any sort of offence and at the time of application of trademark were not aware of the pre-existing brand.
- They gave all the information available to them with respect to the individual from whom they obtained these goods and services.
- If they had acted out of innocence.
There is also a matter of falsely claiming that the trademark has already been registered
If the person is claiming that the mark that they have been using to represent their goods and services has already been provided with trademark registration and this claim is false, there is a 3 year imprisonment.
Like we said in the beginning of the article, it is not merely to tell you about the punishment of the infringing offence that is done towards you, but also what you might have to go through if you partake in such infringing practices. Therefore, take right and wise decisions and always be aware of IP rules should you choose to apply for one.