Can suit for trademark infringement be filed
24-Jun-2023 (In Trademark & Copyright Law)
Can we file suit for trademark infringement when application for rectification is pending before Intellectual Property Appellate Board as the Board is taking too much time to list the same for hearing. Notice has already been sent to the other party to cease and desist.
Yes you can file the suit.
Rectification before IPAB and suit for infringement are separate reliefs, wherein rectification is only for cancellation of Trademark, but for infringement, claiming losses and injunction upon other party, the remedy is suit only.
Thus, both can run simultaneously.
We have already done so in some cases.
Rectification before IPAB and suit for infringement are separate reliefs, wherein rectification is only for cancellation of Trademark, but for infringement, claiming losses and injunction upon other party, the remedy is suit only.
Thus, both can run simultaneously.
We have already done so in some cases.
If a proceeding for rectification is pending before the registrar or High Court, and simultaneously is suit for infringement is filed then the suit for infringement shall remain stayed. Therefore you can file an infringement suit but the same will remain stayed till the final decision in the rectification proceedings.
Hi to your query it is important to understand that rectification is the legal procedure to correct or rectify an error or an omission that has been made in the details of a trademark as recorded in the trademark register, after the trademark registration. A mark may have been wrongly registered or may have remained on the register even after its expiry. In such cases, the Indian Trademark Act provides for filing rectification of the registered trademarks.
Thus in case Rectification proceedings are pending before IPAB, the civil court would stay the infringement suit and wait for the decision of IPAB.
However for further clarity, the details of the rectification proceedings be shared.
Thus in case Rectification proceedings are pending before IPAB, the civil court would stay the infringement suit and wait for the decision of IPAB.
However for further clarity, the details of the rectification proceedings be shared.
Hi. In the narrow conspectus of facts shared by you, it appears a suit for infringement will lie. The suit will have to be filed with sufficient proof of the fact that inspite of service of the notice by the Appellate Board, they continue to infringe your mark.
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