Trademark infringement is a violation of the exclusive rights attached to a trade. Save your Intellectual property by taking appropriate actions with the help of Filecrat in just 10 days
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Unauthorized use of a mark that is 'identical' or 'deceptively similar' to the registered trademark, without the owner’s permission amounts to Infringement. If your trademark is being infringed or you have received a notice of Trademark Infringement by some other party.
What constitutes an Infringement?
- Unauthorized person: Any person who is not the licensee or legal owner of the mark.
- Identical or Deceptively similar: The ‘Test of Likelihood’ or similarity is based on public confusion. If the similar or identical marks are creating confusion to the public, then it is infringement.
- Registered Trademark: Only a registered trademark can be infringed and a suit can be filed against such person. An unregistered trademark can only come under the common law of ‘Passing Off’.
- Goods/ Services: Infringement can be done only if the goods/services of plaintiff and defendant are identical/similar for that trademark.
Passing off protection is given to unregistered marks and goods/ services. The act of passing off accrues when somebody sells or forwards the goods/services of others in his/her name.
The remedy of passing off is available to the unregistered owners of goods/services. It is the common law right of an unregistered trademark owner to take action against any person for passing off their goods and services as the goods of another person or as services provided by another person.
Elements necessary to establish passing off:
- A misrepresentation
- Made by a trader in the course of trade
- To prospective customers or ultimate consumers of goods or services supplied by him/her
- Which is calculated to injure the business or goodwill of another trader (in the sense that it is a reasonably foreseeable consequence)
- Which causes actual damage to a business or goodwill of the trader bringing the action.
- Consultation with our Trademark Expert
- Draft Petition/ reply before the Registrar
- Registered Trademark Certificate
- Power of Attorney/ Vakalatnama
- Trademark Owner Identity Proof
Infringement refers to the violation of the statutory rights associated with the owner/ licensee(s) of the registered trademark without his permission.
The use of same/similar trademark as that of a registered trademark would not necessarily cause infringement if that is used for different purposes, which would lead to no customer confusion.
When two deceptively similar/identical trademarks are used for similar/same purposes, then it leads to confusion amongst the consumers.
No, an unregistered trademark cannot lead to infringement. Under common law, it has a remedy of passing off only.
Passing off is a common remedy in tort, given to the unregistered owners of the goods/services when somebody else uses their goods/services in his/her name.