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Infringement of Trademark


Infringement of Trademark
Infringement of Trademark

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Infringement


Section 29 of the Act addresses infringement of registered trademarks. It outlines that infringement occurs when a person, not the registered proprietor or user, uses a mark identical with or deceptively similar to the registered trademark in relation to goods/services covered by the registration. This usage should be likely to cause confusion or be taken as trademark usage.



  • Identical or Similar Goods/Services: Infringement occurs if the mark used is identical or similar to the registered trademark and applied to similar goods or services, likely causing confusion.



  • Reputation and Unfair Advantage: Even if goods/services are dissimilar, infringement can occur if the registered trademark has a reputation in India and its use without due cause would exploit or harm the distinctive character or reputation of the trademark.

 
 

Defences and Remedies


  • Additional Material Defense: Infringement cannot be excused by incorporating additional material into the mark. However, in a passing-off action, such incorporation may defend the defendant if it distinguishes the defendant's goods.


  • Procedures and Jurisdiction: Section 134 specifies that infringement suits must be brought before a District Court with proper jurisdiction.



Remedies


Section 135 enumerates the remedies available in infringement or passing-off suits, including injunctions, damages, account of profits, delivery up of infringing labels/marks, and preservation of infringing goods/documents.



Temporary injunctions are mandatory in clear infringement cases. The plaintiff can choose between damages and account of profits after establishing the defendant's liability.



  • Honest Concurrent Use Defense: If the defendant claims honest concurrent use, they must apply for trademark registration. The court may adjourn the suit pending registration, depending on the circumstances.


  • Recurring Cause of Action: Each infringement incident provides a fresh cause of action for the trademark holder, enabling legal recourse against repeated infringements.


  • Cybersquatting Protection: Courts actively protect global brands from cybersquatting, striking down misleading domain name registrations and taking action against offenders.

 
 

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