A legal notification just signifies the start of the legal procedure. It is for those whose legal responsibilities, rights, or duties have been eliminated by another party. It is a means of employing a court of laws’ mandated procedure to alert organizations and individuals regarding a matter.
In India, infringement is defined as the infringement of the exclusive right provided to the registered owner of a trademark; the Trademarks Act, 1999, Section 29, governs this process. It is deemed trademark infringement when someone uses a registered trademark or a trademark confusingly similar to the registered trademark when used with services or goods for the purpose that it has been registered nevertheless is not the trademark’s registered proprietor, the licensee, the assignee, or of any of these parties. The use of a trademark by a party, referred to as the “infringer,” in connection with products or services that have characteristics identical to or similar to those protected by the registration and that trademark is confusingly comparable to or identically to one owned by a different entity may be regarded as infringement. A trademark owner has the right to file a lawsuit against the infringer of their registered trademark.
What precisely is a trademark infringement?
The owner of a trademark may use it themselves or grant permission to others to use it. A person who uses a mark that is identical or confusingly similar in connection with identical products or services for which a trademark is registered in the course of their business and is neither a registered proprietor nor a registered brand user is considered to be infringing on the registered trademark. It is an infringement on the individual’s exclusive rights concerning that trademark.
An Notice of Trademark Infringement: What Is It?
A trademark infringement notification is sent to the person who copies the registered trademark’s logos or phrase together with a legal document. It acts as a preliminary alert, describing the infringement of the trademark and asking them to stop using it. This guards against consumer misunderstanding and possible damage, safeguarding to register a brand’s identity and reputation.
When does a trademark infringement happen?
To qualify as an infringement, the following conditions have to be met:
- The individual is not permitted to make use of the trademark.
- The trademark that was registered faster and the trademark that is being violated are either the same, very similar, or misleadingly similar.
- The trademark infringement must occur while the registered brand owner or user is actively engaged in a normal business activity.
- When using the infringing trademark in an advertisement, it must be printed or shown in its typical form. Utilizing a trademark isn’t considered as copyright violation.
- Using a registered trademark in its entirety or, with a few additions and modifications, in an adopted version.
When is it permissible to file a legal notification of trademark infringement?
The circumstances in which someone else has infringed upon your trademark and you need to notify them of the violation.
- Illegal Usage: You have not granted permission for the individual or group to use your trademark.
- Familiarity: There is either a complete match, a confusing similarity, or a misleading similarity between your trademark registration and the infringing trademark. This implies that a typical customer could be tricked into thinking you are the source of the phony good or service.
- Directly Competitors: The infringing trademark offers goods or services that are the same as or similar to those you offer under the registered brand name.
- Use in the Public Domain: Improper use of a trademark occurs when it is used in a commercial context, like a promotional product, or website. Speaking while utilizing a trademark is typically not seen as violating the law.
- Significant Resemblance: Despite little additions or modifications, the infringing mark substantially resembles your registered trademark.
Components of a Legal Notice Regarding Trademark Infringement
These are the things that every legal notification of trademark infringement must contain.
- Your Information: Together with your name, addresses, phone number and email address, make it apparent that you are the proper owner of the registered brand.
- Details about the violator: Give the name and contact details of the individual you think is abusing your trademark.
- Name of Trademark: Provide a thorough description of the registered trademark.
- Details regarding Registration: If applicable, include the trademark’s registration number and date.
- Products and Services: List the specific goods or services that you have filed for trademark registration for.
- Describe the Infringing Mark (if any): Indicate exactly which trademark the purported infringer is making use of.
- Explain How They Are Similar: Explain how the infringement mark and your registered trademark are confusingly similar or exactly the same.
- Provide Evidence (Optional): If available, include screenshots, copies of the packaging, or advertisements that demonstrate the violation.
- Stop and Desist: Make it clear that the infringement party must stop using their trademark right now.
- Decide What to Do: Outline the actions you desire the owner of the infringement to take, such as removing the illegal mark from products, websites, or advertising materials.
- Establish a deadline: Allow a reasonable length of time for the owner of the infringement to respond to the notification and comply with your requirements. The completion of this typically takes a month or two.
- Alert Me About Potential Legal Action: Make a clear threat to take legal action (a lawsuit, for example) if the person committing the infringement fails to pay within the specified time frame.
What goes into authored a legal notification about trademark infringement?
A quick guide on writing a legal notification of trademark violation.
- Introductory: Provide a brief summary of the notice’s purpose, which is to inform the recipient of trademark infringement.
- Identification of the Parties: Indicate your contact details and state that you are the rightful owner of the trademark. For the alleged infringer, follow suit.
- Details regarding the Trademark: Provide the exact name, registration details, and trademark certificate number of the infringement trademark, if applicable. Enumerate the goods along with services that it protects.
- Aspects of the Infraction: Describe how the infringement mark is used and how it is different from, identical to, or looks suspiciously similar to your registered trademark. Include any available evidence if you have any.
- Calls for Action: Get it done apparently that the party committing the violation must immediately cease using your trademark. Tell them what has to be done (removing the infringement mark from products, websites, or advertising materials, for example).
- Time of Response: Allow a reasonable amount of time—usually 15 to 30 days—for the infringement to reply to your notification and fulfill your requests.
- Consequences of Non-Compliance: Inform the violators of the potential for legal action, including a lawsuit, if they fail to comply within the specified timeframe.
- In summary: Stress that you are the owner of the trademark and that you will protect it.
Trademark owners can use this procedure to give legal notification to the individuals causing the online infringement of their trademarks.
Activities consisting of infringement
- Both a trademark registration and the trademark that is being violated are strikingly similar or identical.
- Products and services that are identical to or misleadingly similar to those for which a trademark is registered are considered trademark infringement.
- Because of its identity or likeness to services and products or registered trademarks, an infringing trademarks is likely to generate confusion among the public or be associated with the registered brand.
- Trademark infringement results in undue benefit or harm to the registered trademark’s reputation.
- Any advertisement that unfairly benefits from its distinguishing nature or works against its reputation.
- By both their visual depiction and spoken usage of the terms that make up a registered trademark’s distinguishing characteristics.
The Act on Trademarks of 1999 offers the following clauses as remedies
- Penalties under Trademarks Act Section 103: Anybody who falsifies a trademark or falsely is applicable a trademark to goods or services faces shall not be less than 1 year, but which may be extended to three years, as well as a maximum fine of Rs.1 lakh but with the possibility of an increase to 2 lakh rupees.
- Penalties according to Section 104 of the Trademarks Act: Anyone who assisted the accused in any way—by selling, supplying, or hiring services for the good, having the good for sale, or in any other manner—will be subject to a fine of more than lakhs of rupees, a minimum on six months’ imprisonment, and a maximum of three years’ being imprisoned as punishment.
- Penalty under Trademarks Act Section 105: A person guilty of any of the offenses listed in Sections 103 or 104 faces imprisonment for a minimum or less than of one year, with the likelihood of three years, and a penalties of at least Rs. one lakh, with the possibility of further extensions of 2 lakh rupees, for both the second and each subsequent offense.