Trademark, Copyright And IPR

Trademark infringement is the interference with or violation of another party’s trademark rights through the unauthorized use of that party’s mark or a confusingly similar mark. The basic test for trademark infringement is whether the use of a trademark by one party is such that it can create a likelihood of confusion among consumers in the relevant marketplace in relation to an identical or similar trademark belonging to another party. A trademark does not have to be an exact copy of another mark in order to be considered infringing.

The legal definition of infringement varies from one jurisdiction to another. The most common standards for infringement are (a) close similarity of a mark and its associated goods and/or services to a prior mark and its associated goods and/or services; or (b) use of a mark that creates a likelihood of confusion, in the course of trade, with a prior mark among the relevant consumers. Trademark law in some jurisdictions incorporates both concepts.

Infringement Criteria:

The elements for a successful trademark infringement claim have been well established under both federal and state case law. In a nutshell, a plaintiff in a trademark case has the burden of proving that the defendant's use of a mark has created a likelihood-of-confusion about the origin of the defendant's goods or services. To do this, the plaintiff should first show that it has developed a protect-able trademark right in a trademark. The plaintiff then must show that the defendant is using a confusingly similar mark in such a way that it creates a likelihood of confusion, mistake and/or deception with the consuming public. The confusion created can be that the defendant's products are the same as that of the plaintiff, or that the defendant is somehow associated, affiliated, connected, approved, authorized or sponsored by plaintiff.

How can one redress infringement?

  • Trademark laws typically provide for disjunctive relief and damages as remedies for infringement. The availability of attorney’s fees as a remedy varies significantly both under specific trademark laws and under general legal procedures of various countries. Under some circumstances, and particularly where the goods are determined to be counterfeit, seizure, impoundment and destruction of the infringing goods may be available. Some jurisdictions allow for awards of statutory damages, enhanced damages, recovery of the infringer’s profits and other remedies.
  • Furthermore, many jurisdictions recognize trademark-related criminal offenses, such as, among others, counterfeiting and forgery. A party guilty of such offenses may be liable for a fine, imprisonment or both.
  • The most common form of relief granted to a successful plaintiff in a trademark infringement lawsuit is an injunction against further infringement. If the infringed mark was federally registered, attorney’s fees would also be available to a successful plaintiff.


Relief can only be granted in case of passing off if it can be proved that the defendant has done something which is calculated to deceive. It is very essential to show that there has been a false representation. The plaintiff must show that the defendant has used the mark on the goods or in connection with them and that the mark has attained an association in the minds of the public.

Patent in India

A patent is a legal monopoly granted for a limited time to the owner of an invention. It empowers the owner of an invention to prevent others from manufacturing, using, importing or selling the patented invention.


Patents refer to enforceable exclusive rights granted to the inventor in exchange for his/her making their invention public.  In India, an invention pertaining to a new product/process, involving an inventive step and capable of industrial application can be patented. Patents are a form of intellectual property.  An inventor can also appoint an assignee who acts on his/her behalf and incurs both the rights and the liabilities. Patents are enforced by nations. However, though the specifics of the Patent Law are determined by each country, countries work under the framework of the multilateral treaty, TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights)

History of Patent Law in India:

  • In 1911, The Indian Patents and Designs Act was enacted, providing basic protection to patents.
  • The Patents Act, 1970 is the legislation that till date governs patents in India. It first came into force in 1972.
  • The Patents Act has been repeatedly amended: 1999, 2002, 2005, 2006. These amendments were required to make the Patents Act TRIPS-compliant
  • The major amendment was in 2005, when product patent was extended to all fields of technology like food, drugs, chemicals and micro-organisms. 2005 was the final deadline for complete compliance with TRIPS. The Rules under Patent Act were also amended in 2012, 2013, 2014.

Role of TRIPS

  • TRIPS became effective on January 1, 1995 by agreement of WTO member states, who then became obligated to implement domestic laws to comply with the TRIPS minimum requirements.
  • Developing countries were initially given up to five years (i.e. until January 1, 2000) to implement domestic laws in accordance with TRIPS.
  • Member states obligated to provide patent protection for an area of technology for which no domestic protection existed as of the effective date of TRIPS received an additional five years (for a total of ten years, or until January 1, 2005) to bring their domestic laws into complete compliance with respect to product patents in the new area of technology.
  • Both of these five-year provisions applied to India in the area of pharmaceuticals, as it was a developing country and also a country whose laws had no provisions for protection of patents of drug and pharmaceutical products.
  • The TRIPS Agreement forced developing countries to adopt product patents on medicines. Prior to the negotiation of TRIPS, many countries excluded pharmaceuticals from patent-ability to keep prices down. India allowed only process patents, which could be used to reverse engineer the products.

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