Everything You Need to Know About Trademark Counterfeiting
It may be difficult to accept that the term Counterfeiting has not been defined anywhere in the Indian Trade Marks Act, 1991. It’s an act of selling, offering, or producing a product or service that has been recognised by the legally registered Trademark can be termed Counterfeiting. In simple terms, counterfeits are unauthorised products or services that are commercialised towards transgression of a Copyright, Trademark, Patent, or other IPRs. Organisations like INTERPOL and WIPO are working on an action plan to fight the increasing rate of Counterfeiting. Scroll down to check more details regarding Trademark Counterfeiting.
What is Trademark Counterfeiting?
Trademark Counterfeiting is when a registered Trademark is placed on a product or service that is not one of the legitimate products provided by the Trademark owner. It can be defined as any known distribution, manufacture, or intent to distribute products bearing Counterfeit Trademarks. The product will be deemed to bear a Counterfeit Trademark if it contains any mark that recognises as it is coming from a source that is usually associated with the distribution of the product, but it doesn’t come from that source. The implementation of Trademark Counterfeiting Laws is to safeguard potential customers, as is the case with all Trademark policies.
Trademark Law covers protection to make that have not been registered as long as they need to be employed in commerce. The enforcement of Trademark Counterfeiting Laws is liable upon the mark have been registered with a governing law office; this gives an extra incentive to Trademark owners to register their marks. Determining an intent to distribute is often a vital factor to establishing a Counterfeiting claim.
Section 102 of the Trademark Act, says that Faking of Trademark is when an individual without the assent of the Trademark owner makes a Trademark or a deceptively identical mark. It won’t be unprepared to say that we all have spotted products from the different luxurious brands such as Brahmin, Prada, Armani, etc., at the roadside/in the street shops that at very depict the real-life example of Trademark Counterfeiting.
Counterfeiting as per the IPR Enforcement Rules, 2007
The import of products violating IPRs is prohibited under the Customs Act, 1962, read with the IPR (Imported Goods) Enforcement Rules, 2007. Any merchandise that is reproduced, created, and placed into circulation or otherwise utilised in violation of holding law in India/outside India and while not the approval of the proper owner or someone punctually certified to try and do so by the proper owner is going too covered under this rule.
According to the regulations, an IP owner, while registering their rights with customs, shall, by writing a notice to the Commissioner of custom/any custom officer certified, request for suspension of products’ clearance suspected to be violating IPR at port thereof.
As Customs Act regards counterfeit products essentially as prohibited goods, they can suspend the clearance of products on their initiative and where it is prima facie evident or reasonable grounds exist to consider that the import of particular products may violate the IPR.
The import of allegedly violating products into India shall be considered as prohibited within the significance of Section 11 of the Customs Act, 1962 only after the issuance of the registration by the Commissioner on examination.
What is the Difference Between Trademark Counterfeiting and Trademark Infringement?
Counterfeiting is always Trademark Infringement, but Infringement is not always Trademark Counterfeiting. They may prima facie look similar, but a small line of difference exists between them. Counterfeiting means to match something with the intent to deceive a person into believing that the product or good is similar to the Trademark validly registered concerning such products which thereby violates the right of the Trademark owner in question. Whereas, a Trademark is violated once, marks bang into each other, which is possibly going to steer to shopper confusion regarding sources, affiliation, or support.
Counterfeiting means it’s a Trademark deceptive infringement that is taking a Trademark that is registered with the Trademark & Patent work area and someone creates a spurious copy of that mark. If you have a registered Trademark that is counterfeited, you will have possible remedies.
Trademark Infringement is wide-ranging and a more far-flung idea up against Counterfeiting. In the term of Counterfeiting, remedies can be subjected to IP regulations in India under Section 63 of the Copyright Act, 1957, of Section 135 of the Trade Marks Act. Further, the criminal remedy can also be availed under Section 103 & 102 of the Trade Marks Act and Section 476 of the IPC (Indian Penal Code), and in the event of Trade Infringement, civil remedies of injunction & damages can be solicited.
Remedies Against Trademark Counterfeiting
It is the principal regulation governing Trademarks in India. Anyone looking for countermeasures under Trade Marks Act can solicit to go for either criminal or civil remedies against Trademark Infringement. Section 19 of the Trademark Act makes provision for the safety of registered marks in the case violated by anyone and insulate the rights of an unregistered owner or licensee also. The burden of evidencing the owner’s assent in a condition of faking and wrongfully applying for Trademark untruthful on the accused is provided under Section 102. Moreover, Section 103 & 105 act as penalty clauses, giving for false Trademarks, Description of Trade, etc. and thereby subsequent convection of anyone already convicted under Section 103 & 104 before. Meanwhile, Civil Remedy for the same is designed in Section 135, which lays down relief in Infringement case or passing off providing for injunction orders, damages, or an account of profit, together with/without any order for delivery of violating labels.
Trademark Counterfeiting Case between Montblanc Simplo Gmbh v. Gaurav Bhatia & Ors. (2017)
It’s one of the famous cases in the offence fight with the counterfeit menace and innards concerning damages in Trademark Law. Here the High Court of Delhi, in its judgment, has dictated a permanent injunction & further passes confining orders against the sale of counterfeits which were being shown to be bona fides to the original one stating it to be in violation of Trademark Law.
In addition, the Court, while dismissing the appeal for damages to the petitioner, also addressed the fundamental question as to when and how much of the damages must be permitted and further stated that the Court may refuse to grant damages on lack of enough evidence of penalisation or as the case may be.
Counterfeiting is a huge business, and it is an organised crime that hurts authentic companies, especially small businesses, and for bye hinder the safety and health of customers, national security, and economies. Moreover, it tries to deprive the Government of revenues & consigns a burden to taxpayers. Anti-counterfeiting laws are giving policies for better surveillance preventing risk associated with counterfeiting products or goods.