Defend Your Trademark

INTRODUCTION

A trademark is said to be infringed when a person, other than the registered proprietor, in the course of trade, in relation to the same good or services for which the mark is registered, uses the same mark or a deceptively similar mark that is likely to confuse the mind of the public or is like to cause the impression of association with the registered trademark.

The following are the types in which a trademark may be infringed:

• DECEPTION OR CONFUSION AS TO GOODS: A person may buy the goods seeing a mark which he thinks belongs to a particular brand but it doesn't. This is the most common type of confusion or deception.

• DECEPTION OR CONFUSION AS TO TRADE ORIGIN: A person, by looking at a particular mark, may think that it is coming from the same source as some other goods bearing a similar mark that he is familiar with. The deception or confusion is concerning the origin of the trade.

• DECEPTION OF CONFUSION AS TO TRADE ORIGIN: Even though a person looking at the mark may not think that is the same as the one with a different brand in his mind, the similarity may make him believe that the two are connected in some way.
   

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PASSING OFF OF TRADEMARK

It means that, if a trademark is registered and someone else sells or provides services using the same trademark but without permission from the owner of the trademark, it may be considered an infringement. The law of passing-off concerns unfair competition, as the infringer would benefit from the reputation associated with the trademark.

The tort of passing off can be used by a court to enforce trademark rights that are not registered. This occurs when a second party uses an unregistered mark and misleads the public, leading them to believe that the first is offering the goods or services. The main cause of passing off is when the reputation of a business is misappropriated and misrepresented by another party who also runs the business.

The second business of the infringer will lead to:

• Tricking the public to believe that the goods of the infringer are linked with the first

• Damages in money and reputation to the first.
   

WHO CAN SUE FOR INFRINGEMENT?

In the event of infringement or passing off, one can sue:

• Owner of the trademark

• Successors/heirs in law of the owner

• An unauthorized user is a registered user who has failed to act after sending a warning to the infringement

• In a joint-proprietorship, one of the owners

• When infringement of a trademark in India occurs, the foreign owner

To claim relief, the action against passing-off is to file a lawsuit which is usually combined with a suit for passing-off and infringement.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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