Registering a trademark may not be enough – protect your brand from infringers
A trademark serves as a unique identity which imparts a personality to a product or service. It can range from a slogan, logo, graphic, colour combination, sound or even a signature.
After the few basic steps of application, the applied trademark needs to be approved by the trademark offices in India. Usually a product can start using TM mark after initial approval which is given in up to 3 days. TM sign shows that the application for trademark registration for that particular product/ brand trademark registration is under review. Entire registration process takes 12 to 18 months for completion. Subsequently a ™ sign can be changed to ® sign upon receipt of registration certificate.
Trademark Registration provides a statutory protection against any type of infringement due to unauthorized usage of the trademark. You can file trademark opposition, if your right over the owned trademark is violated by a third party. Trademark Opposition by a third party can be raised if the opposing party finds that its right over the brand name can be violated if the said application is registered. This is one of the many grounds for raising trademark opposition. The opposition is raised when the trademark application is published in Trademark Journal after acceptance by the Registry. The notice of opposition is filed within 4 months from the date of publication. The opposition is filed in the form prescribed by payment of requisite fee. This can be filed by owner of registered trademark or unregistered brand name.
Even if the trademark is not registered, its illegal duplication gives the right to the owner to take the infringer to the court of law. Using a deceptively similar mark as the existing registered trademark, deliberately done to misguide the general public is counted under infringement. There are two types of remedies available for trademark violation:
An action against Infringement:
This course of action is taken when the trademark is registered. It is a statuary action wherein the plaintiff has to prove that the infringing mark is a deceptive imitation of the trademark. No proof to establish right over trademark is required as the registration of trademark has already been registered by the Government of India under Trademark Act, 1999. It needs to be noted that court protects the prior consistent user of the trademark over the registered trademark proprietor based on the common law principles.
Action against Passing off:
This procedure is followed when the trademark is unregistered. It is a common law remedy. Passing off action allows the trademark owner to take action against the infringer for passing off goods or services in the name of another person. Here it is imperative to prove in the court that the infringement of the mark is leading to the damages of goodwill or causing monetary loss to the plaintiff. Action of passing off is unaffected by registration or non-registration of the trademark.
Remedy for action of infringement or passing off, Government can grant relief of permanent or temporary injunction, banning the infringer to stop the usage of trademark. Alternately the court can order a monetary compensation against the damage for loss of business or/ and confiscation /destruction of infringing merchandise.
Protect your Trademark from infringers. Consult at LegalWiz.in, an online legal portal with expert team of CA, CS and lawyers to guide you towards the accurate modus operandi to raise Trademark Opposition. Invest in a safe, affordable and reliable legal companion who will complete the legal formalities for you, without you having to delve in confusing legal terminologies. Relax and Unwind with LegalWiz.in
CREATE NEW DEFINITIONS OF ENTREPRENEURSHIP!