What does trademark infringement mean to a business?January 25, 2022 By Dinesh Parmar
Branding has always been an important factor for business success, but it is more pivotal than ever before. In the age of the internet, customers encounter hundreds of new brands every day. And because there is so much information being nudged towards them, most customers hardly remember more than a handful of brands that they discover.
Add cut-throat competition to this, and you’ll get a challenging scenario where most businesses struggle to stand out.
So, what’s the solution?
One way to ensure that you grab the attention of your potential clients is by investing in the creation of a strong brand. If you create strong branding for your business, people will automatically take note of it more often than not.
Good branding also gives your brand a human touch, which appeals to your customers’ emotions and transforms them into your loyal clients.
And while establishing a powerful brand is crucial to the success of your business, it is just as important to protect that brand.
Yet, many business owners often forget the first step in securing their brand - gaining and maintaining trademark protection.
What are trademarks?
Trademarks refer to any word, phrase, symbol, design, or a combination of these that are used to identify your goods or services. Basically, it’s how customers are able to recognise you and distinguish you from your competitors.
Sounds simple enough, doesn’t it? Well, the complicated part is owning and enforcing them. Because not many people know how trademark protection and trademark infringement works.
Wait. What is trademark infringement?
Trademark infringement is basically the unauthorised use of a trademark or service mark. This use can be in connection with one or more goods or services and it can lead to confusion, deception, or a misunderstanding about the original source of the product or service.
In other words, when an average consumer looks at the trademark or service mark, they are likely to get confused about who is offering the actual goods or service.
The Trademarks Act, 1999 applies to direct infringement, so we will be discussing it in detail.
A situation is termed as direct breach or direct infringement when the following factors occur:
- It is only considered to be a violation of a trademark when it is being used by a person or entity who is not authorised by the holder of the registered trademark.
- It’s not just enough that an unauthorised person uses some trademark. The trademark used by them should be either identical to your registered trademark, or deceptively similar to
- It is also necessary to remember that trademark infringement extends only to trademarks or service marks that have been registered with the trademark registry of India.
If your mark is not registered, the common law will apply to your case instead.
- Additionally, for there to be infringement, the unauthorised use should be associated with a good or service that falls under the same class as your registered trademark.
- There might also be situations where your mark or brand is used in a class of goods or service which is completely different from yours. In such cases, the level of exact
similarity between the two marks generates a basis for infringement.
Let’s discuss the concept of deceptively similar in a little detail. For two trademarks to be deceptively similar, you will have to establish that a common consumer may be confused
between the two and consider them the same.
The key term here is ‘may’. So, you don’t need proof of a consumer actually being confused, just that there is a probability that it might happen.
But, what’s the big deal?
Trademark infringement is a big deal. While every situation has its own little nuances, here’s how you could suffer if someone infringes upon your trademark.
- Your customers might start buying from the infringer rather than you.
- If the infringer sells low-quality products, your brand value could suffer as well. Because now, your customers think that you sell low-quality products too.
- Potential customers become confused about how to contact you, and they might end up choosing your competitors’ products or services.
In the worst of circumstances, these can all occur at the same time. But even if one of these situations happen, they can result in pretty serious effects on your brand perception and financial revenue.
Thus, if you suspect that someone is infringing upon your trademark, it is important that you get in touch with an expert, like a trademark lawyer.
So, what to do if someone is infringing upon your mark?
Let’s say that you’ve got your trademark, and you have been using it for a while. Now, you see that someone else is deliberately selling goods using your trademark or maybe they aren’t even aware of their rights.
First and foremost, it is always a good idea to consult a trademark lawyer, given the complexities of the situation.
Then, you should notify the other side of your rights, with a notice that very clearly states that you believe they are infringing upon your rights. This establishes a clear line of communication and lets them know that any further action they take might be actionable.
But before you do this, it is important to figure out what the facts are. It is important to determine priority, for instance. You don’t want to accuse someone of infringing upon your trademark, only to discover that they used the trademark first.
Once you have established contact, you should also work out ways to co-exist. Or maybe one party can discontinue the use or phase out the mark. In the end, it is better to initiate with the option of coexistence by way of written agreement only, rather than litigation, which is much more time consuming and expensive.
On the whole, it is always to act sooner rather than later. As a leading trademark law firm, we offer a complete range of services related to trademarks. From trademark search to registration, our expert attorneys guide you through every step of the way. In cases of infringement, our experienced trial attorneys represent clients in resolutions and through the various phases of litigation.