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July 08, 2016 Registrationwala

Who is using my Trademark ?

Trademark

Who is using my Trademark ?

Trademark is the mark, word or a short phrase used to identify the products and services traded by any company or individual. It can also be used by recognised organizations to identify them. Your product or service name could be in the form of a logo, sign, heading, graphic, slogan, design, signature, word, letter, or combination of colours or any combination thereof.

When somebody else without obtaining the permission of registered trademark owner uses his trademark then it is called Trademark Infringement. In reality, person never uses other’s trademark ‘as it is’. He just modifies the trademark to create the confusion among the general public.

In this way, he violates the exclusive rights of the original trademark owner. Infringement results in loss to the reputation, market share and profits of the trademark owner.

Due to the increased ill-legal practice, businessmen become more and more conscious and aware to protect their brand against infringement.

But, it is not always that other person deliberately uses the other person’s registered trademark in his business. Sometimes, he makes every possible effort that his or her own trademark remains at arm’s length distance from the existing trademark on the basis of various criteria which distinguishes the two trademarks. In this way, one should know that what constitutes the similarity between the two trademarks or we can say what the actions are which constitutes infringement. Followings are some of the rules which are the guiding principle to know what cases fall under infringement and what are not:

Following actions amount to infringement:

  1. A mark which is identical to existing trademark is likely to create confusion among the general public.
  2. A mark which is similar to other trademark and also being used for similar kind of products which are covered by the existing trademark.
  3. A mark which is similar to the existing trademark having a reputation in India regardless goods covered by that trademark.
  4. Use registered trademark in advertisement which adversely affects the reputation of the mark.

But, following actions do not amount to infringement:

  1. If you are using a mark just to indicate the quality, kind, quantity etc.
  2. When you are using that part of the trademark which is outside the scope of the trademark registration. For example: You register a mark, “XYZ star market” with condition that you will not have exclusive right on the words “star” and “market”. In this case, I can use both the words without constituting an offence.

Remedies available to the person whose rights are infringed:

The most common relief granted to the person who files the case of infringement against the second party is Injunction. Injunction in this case, is a court order which stops infringer from further use of the trademark.

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