Will it be viewed as a Violation of Trademark norms if Your Trademark is being used by Someone Else?

Trademark Registration ensures that some rights and privileges are furnished to the Trademark owner and safeguard them from undue counterfeits. It prevents the use of a similar design or logo by any other. Hence, it ensures that the owner has total control over the name of the business or company. Even after getting Trademark Registration for a logo or a slogan, we notice that other businesses feel that they can choose the Trademark copy and get away with it. In this article, we are going to talk about the violation of Trademark norms if someone is using your Trademark. You can sue anyone else for using a similar design or logo as you do after the Trademark Registration. If you discover anyone copying your work, then you have to follow the steps that are given below.

What can be Trademark?

In India, laws have allowed you to Trademark any of the following:

• Letter;
• Smell;
• Logo;
• Invented word;
• Numerical value;
• 3-D sign;
• Monograms;
• Invented word;
• Catchphrase;
• Graphic design;
• Combination of colours;
• The shape of goods/packaging;
• Word;
• Jingle or Sound.

Legal Necessities to Register a Trademark

• The mark must be graphically presented;
• It must help clients differentiate the goods of the company from goods of another company;
• It has to be used to identify a connection between the goods and the company that manufactures the goods.

Roles of Trademark

• Categorize the products and services;
• Encourages the Goods and Services;
• Creates an image of the brand name;
• It adds some value to the brand name;
• Quality Certification.

Process to take in the Case of Violation of Trademark Norms if Someone is Using Your Trademark

1. Whether it’s a Real Infringement of Trademark Laws

Before you file a grievance or decide to take legal actions, you are needed to validate whether there is a violation of Trademark norms.

• Trademark Infringement

It happens when the clients believe that any other brand is similar to a brand owned by the owner due to the vigilant placing or violence of a Trademark logo or slogan. This double use of Trademark has to lead to uncertainty and dissatisfaction among the users of the marks. Hence, if you use a specific Trademark to make your products and services distinct, you must make inquiries with clients whether the same logo or name used by a different brand is confusing them or not.

• Geographic Limitations

While these could not hold for huge ventures, small ventures often face problems proving infringement regarding the location. If your business or country has a nationwide presence, then you don’t have to worry regarding the location or area. Due to rise in the internet connectivity and the growth of E-Commerce, geographic limitations are regularly failing. Hence, courts now believe that such online immediacy has enough impact on the sale of another entity or company.

• Indistinguishability

Another issue happening concerning the Trademark Rule^[1] is that it’s challenging to make the brand name indifferentiable. Same sounding names can be a violation of Trademark norms, but their similarity can be subjective, and so it hard to prove in Tribunal. The Tribunal takes soundness, view and inference of the mark as the feature for comparing similarity in the Trademark. It’s not easy to show that the two name sounds and looks indistinguishable, and hence the laws concerning them are indistinct sometimes.

Legal Action Against the Violation of Trademark Norms

• If you think that your opponent is making use of another name to confuse customers and works in a similar environment, and affect the sale of your product, you must take action against the fraud.
• The initial step would be to contact an advocate who has some experience in Trademark Law and then follow the guidance given by them.
• If the infringer respects and retreat your mention and stops using your brand name, then the issue is resolved.
• Documentation for claims that specifies the violation of Trademark Norms and the impacts on your business in the Tribunal and if the violation is happening in different areas, then approach the state court.
• Such problems are frequently dealt with by sending a warning letter to the company that is infringing your mark and asking them to desist from using your slogan or logo.
• If the fraud pays no attention to your warning and continue doing the same thing you will have to bring it to the Tribunal Notice and undertake lawful measures accordingly.
• Documentation for the claim of Trademark Infringement and file for accused to pay you money for the damage they have done to your company or business.

What are the Penalties for Infringement of Trademark?

In India, Trademark Infringement may be a knowable offence meaning that the violator can face civil charges alongside criminal charges. It is not compulsory as per the Indian Law that a Trademark must be registered for the institution of civil also as criminal proceedings.

Legal Proceedings Cost

In the case of a criminal proceeding, the Court orders the following punishments:

• A fine of Rs. 50,000 or more and can reach up to Rs. 2 lakhs;
• Imprisonment for a time, not but six months, which can reach three years.

Remedies for Violation of Trademark Norms

The incorporated Trademark owner can begin legal procedures against the violator, declaring the unfair business practices that they carried on. There are two different classes of remedies available to the owner of Trademark against any violation of Trademark norms by any 3^rd party. The Trade Mark Act safeguards the Trademark by providing civil and criminal remedies. The Trademark owner often starts civil remedies before the Tribunal as per the jurisdiction.

Following are some civil remedies for Trademark Infringement in India:

1. Damages: It refers to the restoration of any loss faced by the Trademark owner due to the violation of Trademark norms. The monetary value of loss or brand injury is recovered under damages. The number of damages will be decided by the Court after considering the exacting and unsurprising failure of the owner.
2. Injunction: It is often said when an individual is forbidden from doing a selected task or activity via legal proceedings. For the infringement of Trademark in India, it prevents a person from illegal use of the Trademark. By a permanent stay order or a short-lived, the Court can permit protection to the Trademark proprietor. 

Conclusion

Trademark violation norms happen when the clients think that any other brand is using a registered Trademark logo or slogan. The double use of Trademark has lead to misunderstanding and disappointment among the Trademarks users. Trademark Registration ensures that some rights & privileges are given to the Trademark owner and safeguard from derivative copy. It prohibits the use of a similar design or logo by any other. Hence, it ensures that then the owner has total control over the company’s brand name.

Read our article:Trademark Infringement Warning Letter – An Overview