An Enforcement of rights is a fundamental step and it helps the brand to safeguard their rights. It is the way to defend a right or to test its validity. The Trademark Protection not only grants exclusive rights to the Trademark owner to use its Trademark but also prevents any unlawful and unauthorized use of the mark by the third party. A Trademark owner can enforce his/her Trademark rights against the infringing party through various methods as Trademark rights can be enforced by the owner of the Trademark if his Trademark is being misused.
Trademark Rights Enforcement – Remedies
Enforcement of Trademark Rights can be ensured through both civil and criminal remedies. In case of infringement and passing off, a civil suit can be instituted whereas a Plaintiff can also file a criminal complaint with the Magistrate’s court. As per Sections 29 and 30 of the Trademark Act, 1999 an individual can avail remedy for the infringement against illegal and unauthorized use of Trademark and Sections 103 and 104 of the Act deals with the criminal remedies related to Enforcement of Trademark Rights.
Civil Remedies
- Injunction – The term “injunction” means prohibiting one person from doing a particular act or task through judicial proceedings. Restrictions imposed on an individual from illegal use of the Trademark are termed as injunction on Trademark Infringement. An injunction order can be passed by a Court to prevent a person from further using a Trademark in dispute. During the ongoing proceedings, a temporal order can be passed by the Court to prevent the use of Trademark by the accused if Trademark Infringement does not become clear.
- Damages – Monetary compensation awarded to the person who suffered any wrongful losses because of the actions of another person is referred to as damages. The main aim behind most of the civil remedies is to recover the damages. The Court can pass an order awarding damages for Trademark Infringement and the compensation can be more than the actual loss suffered by the person.
- Destruction And Sealing Of Material – In the matter of Infringement of Trademark, the Court is endowed with the power to appoint a local commissioner for sealing the infringing material and account. Such local commissioner may be directed by the Court to completely destroy the infringing material and may also ask the infringer to deliver all the goods and products that are associated with the Trademark in question before the Court of Law.
- John Doe Orders – A legal corrective course of action known as John Doe orders emerges to protect such situations when it comes to protecting intellectual property rights against certain unknown people and when a person who can pose a threat to a given task, project, or work can’t be traced because his identity is hidden under various layers of covers. The primary objective is to safeguard intellectual property rights in situations where the individuals are unknown. When a project’s outcome has become innovative or inventive, a person who fears that copying by an unidentified person may have caused some harm may ask the court to issue a John Doe order, which is known as a cease-and-desist order in most legal parlance. This will protect the person from potential losses he may suffer as a result of deliberate infringement.
- Measure For Recovery Of Reputation – The infringer may be directed by the Court to take actions to restore the reputation of the company or business that suffered loss because of him. This can be accomplished with an apology in an advertisement or through a statement that brings back the faith of the public in the company or business whose Trademark was infringed.
Criminal Remedies
Criminal remedies are specified under Sections 103 and 104 of The Trademark Act, 1999. Such criminal complaints are filed before a Magistrate to ask for an order directing the police for investigation and carrying out raids. As per Section 103 of the Act, an individual can be penalized for applying false Trademarks, Trade descriptions etc. whereas in Section 104 of the Act, an individual can be penalized for selling goods or providing services to which false Trademark or false trade description was applied. The penalties under both the sections provide for six months imprisonment that may extend to three years and with a fine of not less than fifty thousand that may extend to two lakh rupees. Furthermore section 105 of the Act talks about the enhanced penalties in the matter of second or subsequent conviction, that shall be an imprisonment for a term of one year but not more than three years along with fine of not less than one lakh rupees but may not extend to two lakh rupees.
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