Intellectual Property Rights in India

What constitutes a Trademark Violation?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Trademark

Mains level : IP protection in India

trademark

The Delhi High Court dismissed a case of trademark infringement brought by the global fast food chain against a Delhi-based restaurant.

What is a trademark?

  • A trademark is a symbol, design, word or phrase that is identified with a business.
  • When a trademark is registered, its owner can claim “exclusive rights” on its use.
  • The Trademark Act, 1999, governs the regime on trademark and its registration.
  • The Act guarantees protection for a trademark that is registered with the Controller General of Patents, Designs, and Trademarks, also known as the trademark registry.
  • A trademark is valid for 10 years, and can be renewed by the owner indefinitely every 10 years.

Violation of trademark

  • Using a registered trademark without authorization of the entity that owns the trademark is a violation or infringement of the trademark.
  • Using a substantially similar mark for similar goods or services could also amount to infringement.
  • In such cases, courts have to determine whether this can cause confusion for consumers between the two.
  • There are several ways in which a trademark can be infringed. However, the trademark owner has to show that the trademark has a distinct character-
  1. Deceptive similarity: The law states that a mark is considered deceptively similar to another mark if it nearly resembles that other mark, confusing the consumer in the process. Such deception can be caused phonetically, structurally or visually.
  2. Passing off: Say, a brand logo is misspelt in a way that’s not easy for the consumer to discern. The Supreme Court has ruled that passing off is a “species of unfair trade competition or of actionable unfair trading by which one person, through deception, attempts to obtain an economic benefit of the reputation which other has established for himself in a particular trade or business”.

 

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