An Indian Trademark Registrar Office, Controller General of Patents Designs and Trademarks, registers trademarks by filing a trademark registration application with the Department of Patents Designs and Trademarks. Under the Trademark Act of India, a trademark registered in India is protected against trademark infringement. India’s trademark infringement penalty is discussed in this article.
The use of a trademark that is similar to or identical to a registered trademark in a jurisdiction constitutes trademark infringement. Infringement of trademarks is usually tested based on the following criteria: (a) similarity between a mark and a prior registered trademark and its associated goods and/or services; (b) the use of a mark that can cause confusion among relevant consumers with a prior registered trademark.
A registered trademark owner may be able to prove trademark infringement by showing the trademark infringer is a competitor offering similar goods or services. There is no requirement that trademark infringement proceedings must be brought only against competitors. A registered trademark owner only needs to establish that the trademark infringer’s goods and services are sufficiently related to the trademark infringer’s and that consumer confusion is likely to result.
Improper or Unauthorized Trademark Use
A Falsifying and falsely using a registered trademark carries a penalty and imprisonment. When someone uses a trademark without authorization, the following conditions apply:
- Those who make trademarks or deceptively similar trademarks without the consent of the trademark proprietor; or
- If a trademark is altered, added, effaced, or otherwise falsified, it is considered falsified.
In order to be deemed to have falsely applied a trademark to goods or services, the following conditions must be met:
- Unauthorized use of registered trademarks or deceptively similar trademarks on goods or services, or on packages containing goods;
- A package bearing a mark that is identical to or misleadingly similar to a registered trademark is used without the owner’s consent for packing, filling, or wrapping goods that are not the genuine goods of the registered trademark owner.
Penalty for Trademark Infringement – Applying Unauthorized Trademark
Wrongfully applying a trademark occurs if:
- A trademark is falsely represented.
- An item or service is falsely associated with a trademark.
- Intentionally falsifies or uses for falsification a trademark by altering a die, block, machine, plate, or other instrument.
- Describes a product or service in a false manner.
- Including any item for which it is required to specify the country and place where it was manufactured or produced or to provide the manufacturer’s name and address. This is a false indication of the country, state, place, name, or address.
- Indicators of origin are tampered with, altered, or omitted from goods to which they are required.
Indicators of origin are tampered with, altered, or omitted from goods to which they are required. tend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees.
Penalty for Trademark Infringement – Selling Goods or Services with Unauthorized Trademark
Any person who sells, lets for hire, exposes for sale, hires, has in his possession for sale, or offers or hires services to which any unauthorized trademark or fraudulent trade description is applied is punishable by imprisonment for a term of not less than six months and not more than three years. A fine of up to two lakh rupees and not less than fifty thousand rupees may also be imposed. The person will not be punished, though, if they can demonstrate:
- That the offender took all necessary efforts to avoid committing the crime and had no reason to question the validity of the applied trademark at the time the crime was committed.
- That person provided all information within his/her power regarding the source of the goods, things, or services upon demand made by or on behalf of the prosecutor.
- He or she had otherwise behaved innocently.
Penalty for falsely representing trademark as registered
A person who makes a false statement to the effect that a registered trademark is registered in respect of any products or services when it is not registered is penalized by up to three years in prison, a fine, or both.
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