India, being a mixed economy, has numerous industries that function on a free market basis. The market system has a fierce rivalry. To flourish in the free market, each business must have brand awareness and brand value. The most straightforward method is to use trademarks.

The requirement for trademarks may be thought of as a three-pronged strategy to represent goods or services by

• Assisting customers in identifying the source
• Assisting customers in determining the quality
• Assisting customers in making a purchase choice

Trademark Infringement

The Trademarks Act, 1999 (hence referred to as the Act) is the law that governs trademark protection in India. The Act establishes the laws governing trademark registration, protection, and infringement penalties. Trademarks are considered intellectual property all throughout the world. Accordingly, many organizations, both worldwide and national, work to preserve intellectual property such as trademarks.

The Indian Patent Office, which is overseen by the Controller General of Patents, Designs, & Trademarks, is in charge of trademark protection in India. In layman's terms, trademark infringement is the illegal use of a mark that is similar or deceptively identical to a registered trademark. The word "deceptively similar" refers to the fact that when an ordinary customer looks at the mark, they are likely to be confused about the origin of the products or services.

Types of Trademark Infringements

There are two types of Trademark Infringements that are as follows:

Direct Infringement

Direct Infringement is defined under Section 29 of the Trademark Act of 1999. There are a few points that need to be met for a direct breach to occur

• Use by an unauthorised individual:

This implies that a trademark violation occurs only when the mark is utilised by someone who the registered trademark proprietor does not authorise. Infringement does not occur if the mark is utilised with the permission of the registered trademark proprietor.

• Similar or Identical

The unauthorised person's brand must be either identical to or deceptively similar to the registered trademark. The phrase 'deceptively similar' here indicates that the average customer may be confused by the marks and mistake them for the same. The operational word here is 'may,' and it only needs to be demonstrated that this is a possibility, not that it really happened. It is sufficient to prove infringement if there is a possibility of misrecognition of the marks. 

• Trademark registration

The Act exclusively protects trademarks that have been registered with India's trademark registrar. The common law of passing off is utilised to settle disputes when an unregistered mark is violated. It is a type of tort law that is employed when another person's or group of people's actions cause hurt or damage to their goodwill.

• Goods or services of the following types

The unlawful use of the mark for propagating goods or services that come under the same class as the registered brand constitutes trademark infringement.

Indirect Infringement

In contrast to direct infringement, there is no particular provision in the Act dealing with indirect infringement. However, this does not preclude responsibility for indirect infringement. The universal law concept underpins the idea and application of indirect violation. It holds liable not just the primary infringer but also everyone who aids or causes that primary infringer to infringe. Indirect violation is classified into two types:

• Vicarious responsibility

Section 114 of the TM Act states that the entire company is accountable if a firm commits an offence under this Act. As a result, the primary offender and every individual accountable to the firm will be liable for indirect infringement unless they acted in good faith and had no knowledge of the infringement. The elements for vicarious liability are: - When the person has control over the activities of the principal infringer - When the person is aware of the infringement and contributes to it - When the person may profit financially from the infringement. The only exception to a company's vicarious liability for infringement is when the company acted in good faith and had no knowledge of the infringement

• Contributory infringement

There are only three essential elements to contributory infringement: 

• When the person is aware of the infringement, 
• When the person materially contributes to the direct infringement and 
• When the person induces the principal infringer to infringe. There are no exceptions in the case of contributory infringement because the contributory infringer has no chance of acting in good faith.

Penalties for Trademark Infringement

In India, trademark infringement is a punishable offence, which means that the offender may face criminal prosecution and civil sanctions. Trademark registration is also not necessary by Indian law for the institution of civil or criminal actions. This is related to the common law idea of passing off, as previously stated. The court may grant the following remedies in cases of trademark infringement or passing off:

• A temporary restraining order or Injunction
• Injunction for life
• Damages
• Profit and loss statement or damages in the amount of the profits gained from the relevant infringement
• Destruction of items bearing an infringing trademark
• The expense of legal procedures
• In the event of a criminal procedure, the court imposes the following punishment:
• Imprisonment for a minimum of 6 months and a maximum of 3 years
• A fine of Rs 50,000 may be increased to Rs 2 lakh.

Conclusion

With increased awareness of intellectual property, the number of trademarks registered in India grows daily. However, trademark infringement can result in serious legal ramifications and punishment. As a result, it is critical for entrepreneurs to be informed of intellectual property legislation in India in order to prevent infringing on someone else's brand and to protect his or their own.