Knowledge Center

Nov 13

Posted by:MyEfilings
Penalty for Trademark infringement

Trademark is a basically a purpose of acknowledging the source of origin for a symbol or a word which legally represents a company, Products or Services and is symbolized as "TM" or ®. It's a distinct symbol or a logo or a design, a word or a combination of indentifying any firm, Products or any services. Trademark is a registered treaty providing appropriate ownership rights thereby indemnifying their rights. In certain events there are chances of getting the Trademark Infringed. Trademark infringement is a civil cause of action. It's the violation of rights held by a trademark without authorization from the owner or the Licensee of that trademark. Trademark infringement laws may vary from state to state.  There are many causes of Infringement likewise, same symbol or Logo, similarity in services, wrongful Intent etc. Sometime's there is a confusion created in the trademark infringement and it’s difficult to prove the same. In order to clarify the confusion, the Owner has to prove that the Infringer is likely to mistakenly use the Trademark owning business for the infringing firm. Infringing on someone's Trademark is an offense with an invite to a Penalty for the same. The Penalties for Infringement is diversified depending upon the nature and the degree of extent of use of the Trademark.

Initially, the most commonly action taken against the Infringer is by drafting a Cease or Desist letter, thereby stating the explanation for why the owner believes that the violator or the Infringer is misusing their trademark. Despite of being issued the Cease or Desist letter, if the Infringer still continues to use the Owner's Trademark, then in such event, the Owner has the rights to sue the infringer, for infringing their Trademark in court. Once a case is filed against the Infringement, the Plaintiff is been granted by an injunction and also gets paid for any monetary damages or is being awarded for the Profits lost during infringement. The injunction order implies the Infringer with an immediate action to cease the use of trademark with a severe penalty. For an unauthorized Trademark the Infringer is punished with an imprisonment for not less than 6 months which could also extend to 3 years. The penalty is also in terms of monetary fine for a minimum of Rs. 50,000/- to a maximum of Rs. 2,00,000/-. There were certain companies who were dragged to court for Trademark Infringement. In 2007, Amul wins the case of Infringement against the two local shops in Gujarat High court. Whereas, In 2008 "Pantaloons" were dragged to court by Shoppers Stop, Lifestyle, Westside for Infringement against the advertisement used for giving extra 10% discounts to their Loyal customers.


There are various Infringement remedies like Civil Remedies, Passing Off and Criminal Remedies. For the Civil Remedies, under section 135 of the Trademark Act 1999, the Court grants to the Plaintiff an Interim Injunction thereby recovering the damages caused due to Infringement. The Passing Off under the Section 27(2) of the Trademark Act 1999, enforces the common law to take action against the Infringer by passing off goods as the goods of the other person. Under the Passing Off remedy, the Registration of a Trademark is irrelevant. Whereas, under Section 103 and 104 of Trademarks Act, 1999 the Criminal remedies is provided by filing up a criminal complaint against infringers and Criminal Prosecution against violation of Unregistered Trademark is also available under various provisions of the Indian Penal Code, 1860. Therefore, as per the Trademark Act 1999, the registration of one's Symbol, Products or Services is mandate in order to get protected by the Penalties levied for Infringement. Moreover the Passing Off is tilted more towards the common law which states that when an Infringement is done in such a manner that it is not only similar but causing confusion that harms the business of any firm or company.

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