How to prevent possible trademark infringement in India?

Introduction

Trademark is one of the intellectual property rights. Intellectual property rights are those rights which provide a protection to people for their ownership rights of their innovative and creative product. A trademark is a special symbol for distinguishing the goods offered for sale or otherwise put on the market by one trader from those of another. In a lateral sense trademark promote and provides protection to the owner of the mark and ensures him the exclusive right to use it or to authorize another to use the same in par with the payment.

Trademark Registration                                 

 Brand of a person takes lot of resources, so it becomes important to make it secure. Any person claiming to be the owner of the trademark can apply for the registration of the trademark. Procedure for trademark registration has been prescribed in the Trademarks Mark, 1999. However trademark registration is not mandatory in India but it is always advisable to make it register, as to win claims over an infringement suit. A person can file a suit for infringement only when his trademark is registered.

It becomes very important to register the trademark to claim benefits. Further it is upon the discretion of the trademark office whether to accept or reject the trademark of the owner. So it is important to avoid obstacles in order to register the trademark.

Trademark Infringement

Trademark infringement occurs when the person or business uses the name, logo or domain name of another person or business and that create confusion in the mindset of consumers which one to choose. When these matters goes to court of law, the court will compare both the brand names in the aspect of its identical features, sizes, colour etc. The original owner can claim over the brand name only if his trademark is registered. Trademark registration can be defined as a protection to the trademark from further use.

Section 29 of the Trademarks Act, 1999 provides for the infringement of registered trademarks. Sub section (1) of the section states that registered trademark is infringed by a person who is not a registered proprietor and uses the mark which is identical to the trademark registered. Sub Section (2) of the section states that a registered trade mark is infringed because of its identity and similarity of the goods or services covered by the registered trade mark or similarity to the registered trade mark or identity of the registered trade mark which can create confusion to public. Sub Section (5) of the section states that registered trade mark is infringed when the person uses such mark as his trade name or his business name. Sub Section (6) of the section states that a person uses a registered mark if he affixes it to goods or packaging or offers goods for sale under registered trade mark or imports or exports goods under the mark or uses registered trade mark on business papers or in advertising. Sub Section (7) of the section states that a registered trade mark is infringed by a person who uses labelling or packaging goods under the mark provided when he applied the mark, he had a reason to believe that the goods belonged to the proprietor or a licensee^[1].

Moreover Indian Trademark Act, provides for civil, criminal as well as administrative remedies for taking an action against trademark infringement.

Ways to save from trademark infringement in India

Some points can be taken into consideration while applying for trademark registration. The applicant should make ensure that the brand name should be unique, as if it is similar to other brand names in the market, there is high possibility that it will not get registered and will end up in the sphere of objection. Another key aspect which the applicant can do before applying for trademark registration is to get trademark search done before applying for trademark registration. Trademark Search will help the applicant to avoid those brand names which already exist in the market.

It is not mandatory but hiring of a trademark attorney is a plus point to avoid trademark infringement. It has been often said to hire trademark attorney before applying for trademark registration as these people have access to other databases, including state trademark records and other law marks. Thus they make easy process for the applicants applying for trademark registration. Further it will also save the applicant from the infringement and infringement suits and will save both time and money of the applicant.

As creating a brand name takes investment of both money and time, it is advisable for the applicant not to leave his brand name unregistered. In a trademark infringement suit, timestamps and documentation can provide great support to the case. Timestamping is defined as recording of date and time. When a trademark is registered, the date and time of the same is recorded which may provide great protection if someone files an infringement suit. If the applicant can provide the documents that prove the time when the trademark was registered, it will help to get out from the infringement claim by another company^[2].

Conclusion

As individual puts lot of efforts while creating a brand, it becomes very important to make it registered. Also there is large number of trademark registrations in India, so the sphere of trademark objections is wide. As soon as the applicant receives an objection on its trademark, he/she must file reply to the same within a month after receiving it from the Trade-marks Registry. Delay in the reply can lead to the abandonment of the applied trademark. After the expiry of one month, the applicant is granted final 6 months to reply along with the cause of delay.

Thus, one must be very efficient alert during the trademark registration process. Moreover one should follow avoiding common names, combination of well-known names, while registering an application for trademark. Registration of a trademark will save, money, possible future conflicts and hassle in the business. 

BY: MUNIS NASIR

3^rd year Student at Jamia Hamdard