By: S.Parvadavardini Junior Associate Trademarks Department ALTACIT GLOBAL- CHENNAI
Infringement is encroachment upon an owner or an authorized user’s property by an outsider without the owner’s prior approval. An illegitimate use of somebody else’s property consequently leads to infringement. Infringement is breach or the contravention of the prescribed procedure of the law. When a person acts ultravires , it becomes a breach of law which ultimately results in violation or infringement of law.
Use of the patented invention without seeking permission of the owner or the patent holder.
Using a trademark which is identical or confusingly similar to a trademark owned by other party, in relation to products or services which are identical or similar to the products or services which the registration covers.
Unauthorized use of material that is covered by copyright law, in a manner that violates one of the copy right owner’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.
Injunctions against future violations.
Civil raids & Seizures
Damages or accounts of profits
An order issued by a court ordering someone to do something or prohibiting to do some act after a court hearing. The procedure is for someone who has been or is in danger of being harmed, or needs some help (relief) or his/her attorney, to:
a) Petition for the injunction to protect his/her rights;
b) To get an "order to show cause" from the judge telling the other party to show why the injunction should not be issued;
c) Serve (personally delivered) the order to show cause on the party whom he/she wishes to have ordered to act or be restrained ("enjoined");
Temporary or interlocutory injunction
John Doe Order
Anton Piller Order
Perpetual or permanent injunction
M/s Bikanervala Vs. M/s Aggarwal Bikanerwala
Dhariwal Industries Ltd. and Anr. Vs. M.S.S. Food Products
Civil Raids & Seizures
Appointment of a court commissioner (usually a lawyer) with authority to conduct search and seizure at the premises of the defendant or any other premises where there is reasonable suspicion of pirate activities being conducted.
Damages or Account of Profits
Damages work as a compensatory measure for the losses that the plaintiff may have incurred
An account of profits is based on the premise that the defendant has improperly received profits or unjust enrichment which belong to the plaintiff
Trade Marks Act:
Falsely applying a Trade Mark : Imprisonment for a term, which may extend to 2 years, or with fine, or with both
Making or possessing instruments for falsifying Trade Marks : Imprisonment for a term, which may extend to 2 years, or with fine, or with both
Applying false trade description : Imprisonment for a term, which may extend to 2 years, or with fine, or with both
Applying false indication of country of origin : Imprisonment for a term, which may extend to 2 years, or with fine, or with both
Tampering with an indication of origin already applied to goods : Imprisonment for a term, which may extend to 2 years, or with fine, or with both
Selling goods or possessing or exposing for sale of goods falsely marked : Imprisonment for a term, which may extend to 2 years, or with fine, or with both
Removing piece goods etc :Punishable with fine
Falsely representing a trade mark as registered : Imprisonment extending up to 6 months or with fine or both
Improperly describing a place of business as connected with the Trade Marks Office : Imprisonment extending upto 6 months or with fine or both
Falsification of entries in the Register : Punishable with imprisonment for a term, which may extend to 2 years, or with fine, or with both
Contravention of secrecy provisions relating to certain inventions : Punishable with imprisonment for a term which may extended to two years, or with fine or with both.
Falsification of entries in register etc : Punishable with imprisonment for a term which may extend to two years, or with fine or with both.
Unauthorized claim of patents rights : punishable with fine which may extend to five hundred rupees.
Wrongful use of words "patent office” : punishable with imprisonment for a term which may extend to six months, or with fine, or with both
Refusal of failure to supply information : punishable with fine which may extend to one thousand rupees
Furnishes information or statement which is false : punishable with imprisonment which may extend to six months, or with fine, or with both
Practice by non-registered patent agents : Punishable with fine which may extend to five hundred rupees in the case of a first offence and two thousand rupees in the case of a second or subsequent offence
Offences by companies : The company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
A person shall not be held liable, if he proves the act was commited without his knowledge.
Infringement of Copyright : Punishable with imprisonment, which may extend from a mandatory punishment of 6 months to maximum of 3 years and with a fine not less than fifty thousand rupees and extending up to two lakh rupees. Copyright infringement is a cognizable (non-bailable) offence.
For the second and subsequent conviction , the minimum term of imprisonment has increased to one year which may extend to three years and minimum fine has increased to one lakh which may be extended to two lakh rupees.
Section 64 of the Copyright Act, 1957 authorizes a police officer, not below the rank of a sub-inspector to seize without a warrant, all copies of work, and all plates used for the purpose of making infringing copies of work and produce them before the magistrate.
Motion Picture Piracy
The complaint for the offences punishable criminally under the IP Laws must be filed before the Sessions Judge or Magistrate within whose territorial jurisdiction the offence is committed. The Complaint may be filed by anybody either directly with the Magistrate or through the concerned Police Station. Subsequent thereto, the provisions of the Criminal Procedure Code apply with respect to the proceedings.
Alternate Dispute Resolution Mechanisms
Confiscation of infringing material by Excise Authorities and delivery to the owner
Restrictions against parallel importation of goods
Barbara Taylor Bradford Vs. Sahara Television
The author claimed that the television company had plagiarised her novel A Woman Of Substance in its 260 part soap Karishma, The Miracle of Destiny. However, the court said that Taylor Bradford could not have a monopoly on the idea of a woman’s rags-to-riches story.
Honda Motors Co. Ltd. Vs. Mr. Charanjit Singh and Ors
Even if the goods are not same or similar to each other, then also no one can use the registered trademark of a company for any kind of goods which may result in the harm to the business and reputation of the company which is the owner of the trademark
Preserve Legal Validity of I.P Rights
Seek Compensation for damages
Protect the goodwill for the I.P created among the General Public, specially in case of trademarks.