Introduction to Trademark
A trademark is a kind of intellectual property incorporating a distinguishable sign, name, mark, logo, slogan, or any design, which identifies products or services of a particular source from those of others.
They are generally used to identify services and that’s why they are known as service marks. It can be owned by any individual, organization, or any legal entity. It can be seen on any label, package, or on the product itself.
Section 2 (zb)[1] defines trademarks as “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from choose of others and may include the shape of goods, their packaging, and combination of colors.”
Trademark Infringement
Trademark Infringement is the unauthorized usage of exclusive rights attached to a trademark without the permission of that trademark owner. It may lead to confusion, misconception, or deception about the original company a product came from.
Section 52[2] talks about the rights given to a registered user to take proceedings against infringement. “A registered user may institute proceedings for infringement in his own name as if he were the registered proprietor, making the registered proprietor a defendant and the rights and obligations of such registered user in such case being concurrent with those of the registered proprietor.”
If the trademark is not registered, you cannot take any action for infringement of the trademark.
Section 27[3] tells that no action for infringement of the unregistered trademark. “No person shall be entitled to institute any proceeding to prevent or to recover damages for, the infringement of an unregistered trademark. Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof.”
It’s all about you put all your blood and sweat, all your time and energy into building brand value and when you get to know that your trademark has been infringed, you’ve no other option but to fight back for what is yours. To stop the immediate use of the trademark, your first step is to write a letter of infringement of trademark to the person who infringed it.
Trademark infringement letter
A trademark infringement letter is a letter that requests another party to stop using the trademark in its business practices.
It is important for you to mention the registration number of your trademark. The letter can be sent by the original owner of the trademark, or his legal counsel, to the infringing party.
How to write a Trademark Infringement Letter
Step 1- The letter should be started with the date, name and address of the sender.
Step 2- Then it should mention the name of the addressee. The following paragraph should contain the name of the trademark and a description of the infringement.
Step 3- The second paragraph should mention the registration number of the trademark in bold letters. The same paragraph should also tell the addressee that you have the right to restrict the use of the registered trademark as it’s confusing and misrepresentation to the customers. Also, it is harming the goodwill of your company.
Step 4- The third paragraph will mention that the unauthorized use of registered trademark amounts to infringement of your trademark rights. And request the addressee to immediately stop the further use of the trademark.
Step 5- In the last paragraph, you give a pre-determined period of time to the addressee to comply with the above-mentioned demand. And also mention that if they do not comply with it, you can pursue all legal causes of actions, including the filing of a lawsuit to protect your interest.
You can sign the letter before delivering it to the addressee. This letter is a pre-suit notice for a lawsuit against the addressee and you can remind them that if they do not comply with the above-mentioned demand, they can be liable for damages and monetary compensation, which the court determines for the infringement of the trademark.
Conclusion
Trademarks are distinguishable signs, logos that distinguish them from other company’s products or services. If they are registered trademark, they cannot be used without the permission of the owner who has an exclusive right of the trademark. If they do so, the owner, in his full capacity, can write a trademark infringement letter to the infringing party to warn them and make them stop the use of their trademark.
[1] The Trade Marks Act, 1999 (ACT No. 47 OF 1999)
[2] The Trade Marks Act, 1999 (ACT No. 47 OF 1999)
[3] The Trade Marks Act, 1999 (ACT No. 47 OF 1999)
This Article is authored by Tithi Aggarwal, 5th Year B.B.A. LL.B(Hons) Student of Delhi Metropolitan Education (GGSIPU).
Also Read – Complete Procedure of Trademark Registration in India
