What are the Violations of Trademark? – A Complete Guide

In India, several industries or companies operate under the free or open market concept and also the competition level in the market increasing day by day. If any enterprise wants to start a business in an open market, they have to create or form a brand value, and the easiest way to achieve brand recognition is through trademarks. But with the increasing demand of trademark, the violations of trademark is also increasing so to protect your trademark from any violations, it is compulsory to get Trademark Registration. In this blog, we are going to discuss the types of violations of trademark in India. The trademarks help consumers in three ways to promote or represent goods or services by:

1. It helps to recognize the source.
2. It helps consumers to determine the quality.
3. It helps to make a purchasing decision.

What is a Trademark?

Trademark is a name, word, logo or any combination of colours used by any organization or any company to give a unique identification of its goods and services. Trademarks Act, 1999 allows an individual or company to register a trademark in India, and the Trademark Registration in India is mandatory, and it is legally authorized by the government and provide all the rights to the owner for manufacturing, selling, and using the services & products.

What is a Trademark Violation?

The Trademarks Act, 1999, deals with the Trademark Registration, trademark protection, and penalties against any violations of trademark in India. In India, the Patent Office, managed by the Controller General of Patents, Designs and Trademarks, deal with the protection of trademarks. The trademarks tell about intellectual property across the world. There are many establishments all around the world that wants to protect their trademarks. So, it is mandatory to get a Trademark Registration, so any unauthorized person cannot use the registered trademark. In simple words, violations of trademark are the unofficial usage of a mark or logo that is identical to the registered trademark. If any unauthorized person uses the registered trademark, then they will be penalized by the Patent Office.

Read our article:Know The Importance of Trademark Registration

What are the Types of Trademark Violation?

There are two types of trademark violation, and you can check the same from below:

• Direct Trademark Violation: This violation is defined by Section 29 of the Act. Following are some elements that have to be met for a direct breach:
  • Trademark use by an unofficial person: It means the trademark violation happens when an unauthorized person uses the trademark. It the use of the mark with the authorization of the registered trademark holder, then it does not create a violation.
  • Identical or similar mark: The trademark used by the unofficial person needs to either be identical to the registered trademark or similar to it. The typical customer may be confused between the marks and may think of them being the same.
  • Registered trademark: The Trademarks Act, 1999 only extends the trademark protection that has been registered with the trademark registry in India. In case of breaking an unregistered trademark, the public law is passing off is used to settle disputes.
  • Class of goods or services: For the violation of the trademark, the unofficial use of the mark must be used for the propagation of goods/services that comes under the same class of the registered trademark.
• Indirect Trademark Violation: There is no such provision in the Act, 1999 that deals with indirect violence and it does not mean that there is no such liability in this violation.Following are the two types of Indirect Trademark Violation:
  • Vicarious Liability: As per Section 114 of the Act, if any organization commits any offence under this Act, then the whole organization is liable, which means every person along with the principal infringer is responsible for the company for the indirect violation, excluding a person who acted in good faith and without knowledge of the breach.

Following are some element for vicarious liability:

• When the person can control the activities of the principal infringer.
• When the person involves in violation and knows the infringement.
• When the person take some financial benefits from the violation.

The only way for a company to avoid vicarious liability for a violation when the company has acted in good faith and does not know about the violation.

• Contributory Violation: Following are three elements to contributory violation:
  • When the person knows the violation.
  • When the person involves and contributes to the direct violation.
  • When the person makes the principal infringer to commit infringement.

What are the penalties for Violations of Trademark?

In India, the violations of trademark are a criminal offence, which means that the person involved in the violation may face criminal charges and civil charges. It is not necessary by the laws for the trademark to be registered for the organization of criminal or civil proceedings.

In the case of trademark violation, the court may give the remedies as mentioned below:

• Permanent injunction.
• Damages.
• Temporary injunction.
• Damages in the amount of profit gained from the violation.
• Destruction of goods using the infringing mark.
• Cost of legal proceedings.

In case of criminal records, the court orders some of the following punishments:

• Imprisonment of six months which may extend to three years.
• A fine is not less than Rs. 50,000 that may extend to Rs. 2 lakh.

Conclusion

When a product of a brand is original, then it involves a substantial amount of recognition in the customer’s eye. Therefore its commercial value should be protected all time. It would give you protection in case of any violation of your valuable asset. So, it is mandatory to get Trademark Registration to avoid any violations of trademark, so any unauthorized person cannot use the registered mark for their financial^[1] or commercial benefits.

Read our article:How to Apply for Online Trademark Registration in India