How do you Determine if a Trademark is Infringing

Trademark Infringement is an unauthorised use of a registered trademark, which deteriorate the brand value of the TM proprietor. It causes confusion, deception, or mistake about the source of the goods and/or services trademarked.

Running a business has its own perks and responsibilities. Every major enterprise has worries regarding the transgression of its intellectual properties which includes infraction of trademarks, patents, and copyrights.

In order to report an infringement and to gain control over the trademark, the primary holder is asked to prove something called ‘The Likelihood of confusion’.

To prove the likelihood of confusion one has to justify certain aspects like:

• The strength and similarity of the mark
• Proximity of the goods or services the mark represents
• Objective of the secondary holder and so on.

If these factors are properly substantiated, it would be evident that there has been an infringement.

What amounts to Trademark Infringement?

According to Section 29 in ‘The Trademarks Act’ (1999), the Government of India lists the attributes that amount to Trademark infringement

• The tenacity of the mark

The depth and the inner meaning of a trademark logo illustrates the strength of the mark.

 If the registered mark is descriptive and explanatory, it would be easy to make out the infringement.

• Similarities in the trademark design

If any mark resembles an already registered trademark or a part of it, the consumers may get confused or might choose a wrong commodity.

• Application of a trademark without legitimate authorization 

Unauthorized use of a registered trademark may result in deformation of the frame of the original enterprise thereby rendering huge losses to it.

• Intentional/ Unintentional use of phrases /taglines/insignias 

In order to steal a company of its reputation perceptive use of phrases/lines or at least parts of it are done. This is considered to be a serious offense.

 However, there are chances that the actions mentioned above were done, but the perpetrator did not mean any harm to the primary holder.

• Advertising of the mark 
• If a catalogued name/symbol is advertised without approval from proper means, it may deter the honour of the company.
• Use of a registered trade name for business concerns
• A person/organization knowingly or unknowingly using a registered trademark as their trade name or a part of it can cause damage to the original stakeholders.
• Intent of the subsidiary user
• The purpose of copying a trademark differs:
  • Accident
  • It may be to make use of the ‘benefit of the doubt’ to make profits. It may also be to deform the success of a rival company. Thus the intent of the defendant also plays a prominent role in deciding the case.
  • Consumer’s care
  • Extend towards the trademark and the service/goods.

What does not account for Trademark Infringement?

As listed in section 30 of the Trademarks act (1999), there are a few factors which do not count as infringement

• Use of a registered mark to indicate quality or quantity.
• Use of a mark that normally represents parts/ accessories.
• Use of two registered marks that are identical.
• Usage of parts of the mark that represent the type/mode of the services/ goods.

When an infringement is traced, it would be best for the company’s interests that it is solved and cleared at the earliest so as to prevent further losses that the company may incur.