Legal Notice for Trademark Infringement

Legal Notice for Trademark Infringement

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Legal Notice for Trademark Infringement
Legal Notice for Trademark Infringement

What is Infringement of Trademark?

Trademark Infringement is an unauthorized use of a mark which is registered. Such mark may be identical or similar to the registered trademark. It is a violation of the exclusive rights that the person holds in relation to that trademark.

How does the court decide on infringement of trademark?

Similarity in trademark is assumed when the similarity can cause confusion in the eyes of general public. This can be identified by the fact that an undue advantage is enjoyed of the hard-earned reputation of the registered trademark.

When does an Infringement of Trademark Occur?

Infringement is said to have occurred when the registered trademark is used as

1. Trade Name

2. Business Name

3. Advertised

4. Material for Packaging

5. Labelingetc.

Punishment for Trademark Infringement

The imprisonment time in such a case may not be less than 6 months and may even extend up to 3 years. In addition to this the person can be fined for not less than fifty thousand rupees, which may even extend to 3 lakh rupees.

Legal Remedy Available

In such cases, both civil and criminal action can be taken. The Trademark Act, 1999 recognizes infringement of trademarks as a cognizable offence i.e. a police complaint can be lodged, and the infringers can be prosecuted directly. Even the courts are empowered with the authority to suo moto conduct raids and seizure operations. On the other hand, a civil action can also be brought about against such infringements.

Time Limit to file a case of infringement

Since infringement of trademark is a continuing offence, there is no time limit for filing of a suit for this.

Relief that the court may give

If the infringements are successfully proved:

  • Injunction/stay against the use of trade mark;
  • Appropriate Damages;
  • Handing over of accounts and profits;
  • Appointment of a local commissioner by the respective court for custody or sealing of infringing material and accounts.

When to send a legal notice for trademark infringement?

You can send a legal notice for trademark infringement when:

  • One party falters by using the trademark of some other concerned party.
  • No permission to use the trademark was taken.
  • Permission which shall be express in nature.

Essentials of a Legal Notice for infringement of Trademark

  • A legal notice should contain thename, description, and place of residence/office of the infringer. 
  • Date from when the infringement has taken place.
  • Facts and grievances in details with proper dates.
  • How the infringement has caused inconvenience to the owner of the registered trademark.
  • The course of action that the plaintiff is planning to take in detail.
  • All the previous communications made.
  • The notice has to offer reasonable time to reply, usually 15 to 30 days.
  • The notice is to be duly signed by the lawyer, retaining a copy of the notice by the lawyer.
  • Sending legal notice for trademark infringement starts on a lawyer’s letterhead and becomes necessary when a person without any consent starts using someone else’s registered trademark.

Effect of Sending a Legal Notices- Advantages

  • Establishes the rightful ownership of the registered trademark on the mark in question
  • Serves a notice on the infringer on the current laws.
  • Serves a notice to the infringer on the demands and requisitions of the right holder.
  • Serves notice on the infringer that non-compliance with the demands of the trademark holder shall constrain him/her to take course of other legal action including a lawsuit.
  • Establishes the trademark holder’s bona fide attempt to reach an amicable resolution to the matter by making the infringer aware of the law
  • Further, gives an opportunity to the infringer to cease all illegal activities without unnecessarily escalating the matter.
  • If it is complied with, it is a very cost-effective and simple way to combat the infringement.
  • Takes lesser time than a lawsuit.

To send a legal notice for Trademark Infringement click here.

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