Quick and Easy Way to Send Legal Notice for Trademark Infringement
While sending a legal notice for trademark infringement, one needs to know how to draft legal notice for trademark infringement in India. We tell you the situations and remedies involved in sending a legal notice for trademark infringement in India here. Although, one can find many sample of legal notice for trademark infringement online, however, not many will tell you the steps. You can get a lawyer for drafting legal notice for trademark infringement and watch the video below explaining it.
Written by: Prachi Darji
25,116
Published on 09-Sep-19
One who usually sends a legal notice for trademark infringement is the original owner of the trademark with the help of an advocate. The whole concept of trademark including its infringement is based on the Trademarks Act 1999.
The infringing party, on the other hand, should make sure to stop utilising the trademark. As it belongs to someone else or at least takes consent for it while doing so.
One can easily find the format for trademark legal notice here. Also, you can easily find a sample for the reply to legal notice for trademark infringement in the Bare Act.
The legal notice for infringement of a trademark in India is an important procedure of law. It is pertinent to mention out here that the infringing party also has the liberty to reply to such legal notice for trademark infringement in India and contest the said matter in Court.
When to send a legal notice for trademark infringement?
You can send a legal notice for trademark infringement when:
One party falters by using the trademark of some other concerned party.
The party making the infringement has not taken the permission to use the trademark from the original owner.
The permission should be of expressed nature.
To send a legal notice for trademark infringement you can find a lawyer online through our portal. We ensure to resolve all your legal matters as soon as possible!
What Is Legal Notice for Trademark Infringement in India?
You must be wondering what is legal notice for trademark infringement.
Well, firstly you should know that Section 29 of the Trademarks Act, 1999 deals with it. This section states how trademark infringement happens. Here a person who is not the registered licensee/proprietor of the trademark uses the same in the course of trade.
When such an issue crops up, it's exactly when a legal notice needs to be sent.
It is pertinent to mention here that you can legal advice on how to draft a trademark infringement legal notice or find one readily available in pdf format here.
The infringing party in the course of trade may use:
Identity with Registered Mark and Similarity of Goods/ Services: The infringing party may in the course of trade use a mark which would constitute to be completely identical to the originally registered trademark. Even the similarity in the services and goods under that trademark constitutes an infringement. This will eventually cause confusion in the minds of the general public.
Identity with Registered Mark having Reputation:Any other kind of mark which may be similar or identical to the originally registered trademark in the sense of having a reputation in India. It's still considered an infringement if the said mark has been used for different services and goods. Even if they are different than those for which the trademark has been registered.
The Similarity of Trade Name with the Registered Trade Mark: It is also considered to be a trademark infringement if any part of the Trade Name or the complete Trade Name itself is being used or dealt with in services and goods for which the trademark has been registered.
Essential Elements That Constitute Infringement
The essential elements which constitute an infringement include:
The most important element is that the party using the trademark does not have the authority to do so.
Also, the infringing trademark in comparison to the registered trademark is deceptively similar or identical or similar in nature.
Another point to note is that the infringing trademark in use must be used in the course of regular trade.
One also needs to remember that merely oral usage of the trademark does not constitute an infringement. The infringed trademark must be either in print form or in use as a mark in bills, invoices or ads.
Lastly, any person using the complete registered trademark or simply making some minor alterations would also constitute an infringement.
Now let's take a look into some of the remedies to resolving trademark infringement.
Different Remedies for Trademark Infringement
There are various administrative remedies that the plaintiff can seek against the infringer. The different remedies that are available for infringing a registered trademark include:
Civil Remedies: There exist certain Civil Remedies that one can seek for infringement of the trademark. The aggrieved party may move to the court for relief. It is important to mention here that the court handling such matters should not be lower than a District Court. The aggrieved party may move to obtain interlocutory orders, damages, Anton Pillar Orders and the account of Profits.
Criminal Proceedings: The aggrieved party may also opt for Criminal Proceedings to be initiated. One can easily make a complaint against the party responsible for the infringement. The important thing to mention out here is that both civil and criminal proceedings may be initiated against the infringer. The plaintiff under the civil proceedings can seek for relief. Simultaneously the plaintiff while seeking relief may also seek an award of punishment under criminal proceedings towards the infringer.
An important detail which is worth mentioning out here is the fact that as per the Limitation Act 1963. The period of limitation that exists for filing of a suit of trademark infringement is three years. The period starts from the date of infringement.
Now let us take a look into some of the situations which do not constitute trademark infringement in India.
What Situations Don't Cause Infringement of Trademark in India?
Some of the situations include:
Implied Consent for Usage: One of the main situations is where a person is using the mark for the goods and services for which the registered owner or owners had once applied. The mark had not later impliedly consent to its usage.
Usage of Registered Trademark in relation to accessories and parts etc: Another area whereby a person is utilising the Registered Trademark for any goods in relation to parts and accessories of some other goods cannot be considered as an infringement.
The above-mentioned situations are some examples as to what does not amount to infringement of the trademark.
How to Send a Legal Notice for Trademark Infringement?
One must know how to draft legal notice for trademark infringement in India and for any legal notice for passing off in trademark one may discuss the same with an experienced advocate or lawyer.
If the grieving party finds out that there has been any misuse of trademark, legal notice format for the same can be discussed with his/her lawyer.
The following points have to be kept in mind while making a draft of legal notice for trademark infringement:
A legal notice should contain the name, description, and place of residence/office of the infringer.
It should mention the date from when the infringement has taken place.
It should contain all the facts and grievances in details with proper dates.
Also, mention how the infringement has caused inconvenience to the owner of the registered trademark.
The legal notice must contain the course of action that the plaintiff is planning to take in detail.
Please mention all the previous communications made.
The notice has to offer reasonable time to reply, usually 15 to 30 days.
The notice is to be duly signed by the lawyer, retaining a copy of the notice by the lawyer.
Sending legal notice for trademark infringement starts on a lawyer's letterhead and becomes necessary when a person without any consent starts using someone else’s registered trademark.
Since a lawyer’s letterhead is of prime importance in sending a legal notice, therefore while doing so, you should seek help from a legal practitioner before you take a step ahead.
As he/she can guide you well on the process, all through. You can find expert lawyers in various legal fields through MyAdvo.
We understand your legal issues and makes sure that you receive the right legal advice every time. MyAdvo acts as a legal concierge providing you with a list of details of all the lawyers near you.
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