What Is Trademark Infringement?
Trademark infringement occurs when a registered trademark is used by another party without authorization, in a way that is identical or deceptively similar to the original mark, and is likely to cause confusion among consumers.
Unlike passing off, which protects unregistered marks, infringement is a statutory remedy available only to registered proprietors under the Trade Marks Act, 1999.
Types of Trademark Infringement
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Direct Infringement
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Occurs when an unauthorized person uses a mark that is identical or deceptively similar to a registered trademark.
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Example: Selling clothes under “NIKEE” with a similar swoosh symbol.
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Indirect Infringement
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Liability can extend to persons who aid or abet infringement, such as suppliers or distributors.
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Exception: “Innocent infringement” (where a seller genuinely did not know goods were counterfeit) may limit liability.
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Dilution of Well-Known Marks
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Even if used on unrelated goods or services, the unauthorized use of a famous mark (like “Google” or “Amul”) can amount to infringement if it weakens the brand’s distinctiveness or reputation.
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What Does Not Constitute Infringement
Certain uses of a registered mark are permitted, including:
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Descriptive use (using a word in its ordinary meaning, not as a trademark).
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Comparative advertising, provided it’s honest and not misleading.
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Fair use by journalists, educators, or commentators to refer to the mark.
Remedies for Trademark Infringement
The registered owner may seek reliefs in civil and criminal courts:
Civil Remedies
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Injunctions (temporary or permanent) to stop use of the infringing mark.
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Damages or Account of Profits to recover losses or strip unlawful profits.
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Delivery Up of Goods for destruction of counterfeit stock.
Criminal Remedies
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Imprisonment (6 months to 3 years) and fines (₹50,000 to ₹2 lakh) under Sections 103–105 of the Trade Marks Act.
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Police raids and seizure of infringing goods.
Key Difference from Passing Off
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Infringement → For registered marks, easier to prove (only need to show unauthorized use causing confusion).
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Passing Off → For unregistered marks, requires proof of goodwill, misrepresentation, and damage.
Trademark infringement strikes at the heart of brand protection. For registered proprietors, it provides a strong statutory remedy to enforce exclusivity, stop misuse, and safeguard consumer trust. By combining civil, criminal, and administrative enforcement, India offers brand owners a comprehensive arsenal against infringement.
