No claim for trademark infringement or claim relating to any right in a trademark or for counterfeiting arising out of defendants’ use of any trademark that is identical or deceptively similar to plaintiff’s trademark, whether whether or not entered shall be instituted in any court lower than a district court having jurisdiction to hear the claim.

procedure followed

The procedure followed in disposing of the claim is that established in the civil procedure code of 1908.

statute of limitations

Under the Limitation Act 1963, the statute of limitations for bringing a claim for trademark infringement is three years from the date of infringement. When the breach is continuous, a new course of action emerges each time a breach occurs. For example, in a continuous sale of an infringing item, the sale of each item would give rise to a new cause of action.

Who can sue for infringement

The plaintiff in an infringement lawsuit may be:
a) The owner of the registered trademark of his legal successor.
(b) A registered user of a trademark subject to prior notice to the registrant and consequent inaction by the registrant against the infringer.
(c) An application for registration of a trademark, you can file an infringement lawsuit to protect your right to continue with the lawsuit, which will only be maintained if your trademark is registered before the hearing of the lawsuit.
d) Legal hairs of the deceased owner of a trademark.
e) Any of the co-owners of a trademark.
(f) A foreign owner of a trademark registered in India when the infringement occurs in India.

Who can be sued?

(a) The infringer who directly with his action causes the infringement or who uses or uses or contemplates or threatens to use a trademark infringing the right of the actor.
(b) The agents of the offenders.
(c) The director and promoters of a limited company may not join as co-defendants unless they have personally committed or directed infringing acts.

Issues in Infringement Lawsuits

In an infringement lawsuit, the issues that generally must be determined are:

(1) Whether the plaintiff actually has the right to sue and claim reparation. It must be determined if you are the registered owner or if you are a qualified registered user under the provision of the Act.
(2) Whether the use of the infringing mark or the proposed use of the mark would actually amount to infringement.
(3) Whether the plaintiff is entitled to any interlocutory remedy.
(4) Whether there have been actual instances of deception and confusion among the public.
(5) Relief.

The exceptions that the defendant can oppose

Defendants may establish any of the following defenses in an infringement action against you depending on the applicability of the relevant defense to your case:-

(1) That the plaintiff in the lawsuit does not have the right to sue challenging the ownership of the owner of the mark can do this.
(2) That the use of the mark by the defendants is not an infringement or is protected by the provisions of Article 30 that lists the acts that do not constitute an infringement.
(3) That the defendant’s right to use the contested mark arises by virtue of the concurrent registration.
(4) That Defendants have been an honest concurrent user
(5) That the defendants may attack the validity of the plaintiff’s record.
(6) That the plaintiff is disqualified from suing or claiming the reparation sought due to his own conduct, for example, due to his own acquiescence, delay or latches or for having fraudulently acquired his right over the trademark.
He drew
In the case of Electrolux v. Electrix, (1953) 70 RPS 127, infringement of plaintiff’s mark was held, but relief was stayed in view of long concurrent use to allow defendants to apply for registration.

Fenders that can be mounted

(1) Honest brand adoption is not a defense. The defendant cannot claim that he had adopted the plaintiffs’ mark without knowledge of the existence of the plaintiffs’ mark.
(2) An innocent infringement cannot be claimed.

suit to pass

Misrepresentation occurs when a merchant tries to pass off its goods by misrepresenting them to make consumers believe that their goods are the same as those of another merchant. For example, using a ‘Colmate’ brand on a plague of teeth in similar attire to pass off as ‘Colgate’.

The action against usurpation also lies in the filing of a lawsuit. the action is often combined with an infringement lawsuit and I proceed to claim the relief recognized by law.

RELIEF IN TRIAL FOR INFRINGEMENT OR FINDING

The reparation that a court can grant in any lawsuit for infringement and usurpation:
(1) The relief that a court may award in any claim for infringement or encroachment includes an injunction (subject to such terms, if any, as the court deems appropriate) and the plaintiff’s option of damages or an account of earnings, as well as without any order to deliver the infringing labels and brands for their destruction or erasers.
(2) Notwithstanding subsection (1), the court shall not award damages or an account or profit in any event-
(a) when in a lawsuit for trademark infringement, the reported infringement is related to a trademark certification; Prayed
(b) when in an infringement claim the defendants satisfy the court:
(i) That at the time of beginning to use the trademark claimed in the lawsuit, he was unaware and has no reasonable grounds to believe that the plaintiff’s trademark was a registered user by way of permitted use; Y
(ii) That upon becoming aware of the existence and nature of the plaintiff’s right to the trademark, he immediately ceased to use the trademark in relation to the goods for which it was registered;

TYPES OF RELIEF

The type of reparation to which a plaintiff is entitled are:
(1) A court order restricting further use of the infringing mark.
(2) Damages or utility bill.
(3) An order to deliver the infringing labels and marks for their destruction or erasure.

The plaintiff is entitled to prior remedy both in the infringement and in the approval of the action.

non-exhaustive relief

The language of section 105 indicates that the relief mentioned in section 105 is not exhaustive. The expression used is, “the relief includes…”

The grant of relief is discretionary

The granting of relief is discretionary, the use of the expression may indicate that it is not obligatory for the court to grant relief, but the discretion has to be exercised judicially but not in the sense of a prerogative that can be applied arbitrarily.

MANDATE

A court order is a judicial process or order that prevents a person from continuing to commit a wrongful act. the general rules governing the granting of injunctive relief are contained in sections 36 to 42 of the Indian Specific Relief Act, 1963 and Order XXXIX Rules 1 and 2 and section 151 (Inherent Power of Court) of the code of civil procedure , 1908.

The precautionary measures can be of the following types: –

(a) Order of Anton piller
(b) Interdict of Mareva
c) Interlocutory injunction
(d) Perpetual mandate.
These are explained below:

Order of Anton Piller

These are ex parte orders to inspect the defendant’s premises. A court may grant such an order to the plaintiff when there is a possibility that the defendants will destroy or dispose of the incriminating material. Approve such order if for inspection of defendants’ premises.

An ex parte order means an order made on the plaintiff’s request without giving the defendants notice of the request. Such notice would allow the defendant to moderate the evidence of his infringement; hence the ex parte order.

The three requirements to make and order are;

(1) There must be a strong prima facie case in favor of the claimant.
(2) Such an order, if not granted, will cause irreparable harm to the applicant for the injunctive relief.
(3) There must be clear evidence that the defendants have incriminating documents or things in their possession and that there is a real possibility that they will destroy such material if any notice of request is given.

injunction mareva

In this order, the court has the power to freeze the defendant’s assets when there is a probability that the assets will be dissipated or canceled so that the judgment against them is useless and unenforceable.

interlocutory injunction

This form of injunction is the most commonly sought and most frequently granted form of injunction. The interlocutory precautionary measure is an order that prevents the defendants from continuing with the acts that constitute an infringement.

An ex parte interlocutory/injunctive relief may be granted without prior notice in urgent cases. However, such an ex parte mandate is granted only for a limited period.

A claimant seeking an ex parte injunctive relief must comply with the duty to make full disclosure to the court of all facts that are material to the exercise of the court’s discretion to award relief or not.

The granting of an injunctive/interlocutory measure is discretionary, the plaintiff or petitioner cannot claim it as a matter of law for an ex parte order to be granted in their favour.

perpetual term

The perpetual injunction is an order that totally prevents the defendants, forever, from doing any act that infringes the right of the trademark owner. The life injunction is usually granted when the lawsuit is finally decided. The perpetual injunction generally follows when the injunction against the infringement was granted at the beginning of the lawsuit. It can also be granted in cases where an injunction was not granted.

DAMAGES PROFIT ACCOUNTS

The plaintiff in an infringement action may be awarded either damages or a utility bill but not both. In a profit account, the infringer is obliged to deliver the illicit profits in favor of the plaintiff whose right he has infringed.

In case of damage, the defenders must indemnify the plaintiff. The damages may even be more than the monetary gains obtained by the defendants from the misuse of the plaintiff’s mark.

The amount of damages awarded is determined by the amount of the loss actually suffered by the plaintiff that was the natural and direct consequence of the defendants’ unlawful acts. Speculative and unproven damages are also not considered and determine the amount of damages.

In calculating the amount of the winnings, the damages suffered by the plaintiff are irrelevant. Profit accounting is done on the basis of the actual profits that the defendants have made from the sale of the infringing goods.