JAMIA MILLIA MILLIA ISLAMIA
INFRINGEMENT OF TRADEMARK IN INDIA SUBMITTED TO DR. S. Z. AMANI
SHARIQUE RAZA
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ACKNOWLEDGEMENT All Al l Pra ise is e to ALLAH ALL AH (swt) (s wt) . I would like to express my profound sense of gratitude to Dr. S.Z. Amani for providing me his invaluable support, encouragement, supervision and useful suggestions throughout this research work. His moral support and continuous guidance enabled me to complete my work successfully. His intellectual thrust and blessings motivated me to work rigorously on this study. In fact this study could not have seen the light of the day if his contribution had not been available. It would be no exaggeration to say that it is his unflinching faith and unquestioning support that has provided the sustenance necessary to see it through to its present shape. I express my deep sincere gratitude towards my parents for their blessing, patience, and moral support. I express my gratitude to my all teachers and friends who has supported and encouraged me.
SHAI!"# A$A %&H S#'#S&# (&H )#A
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TABLE OF CONTENTS *. -. /. 0. (. 2.
+rocedure f egistration f &rademark In India &rademarks aw In India Introduction Importance f &rademark 1onclusion 3ibliography
TRADEMARKS LAW IN INDIA
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India4s obligations under the &I+S Agreement for protection of trademarks, inter alia, include protection to distinguishing marks, recognition of service marks, indefinite periodical renewal of registration, abolition of compulsory licensing of trademarks, etc. 5ith the globali6ation of trade, brand names, trade names, marks, etc. have attained an immense value that require uniform minimum standards of protection and efficient procedures for enforcement as were recognised under the &I+S. In view of the same, extensive review and consequential amendment of the old Indian &rade and 'erchandise 'arks Act, *%(7 was carried out and the new &rade 'arks Act, *%%% was enacted. &he said Act of *%%%, with subsequent amendments, conforms to the &I+S and is in accordance with the international systems and practices. &he &rade 'arks Act provides, inter alia, for registration of service marks, filing of multiclass applications, increasing the term of registration of a trademark to ten years as well as recognition of the concept of well8known marks, etc. &he Indian 9udiciary has been proactive in the protection of trademarks, and it has extended the protection under the trademarks law to :omain ;ames as demonstrated in landmark cases of Tata Sons Ltd. v. Manu Kosuri & Ors 1, and Yahoo Inc. v. Akash Arora2.
India, being a common law country, follows not only the codified law, but also common law principles, and as such provides for infringement as well as passing off actions against violation of trademarks. Section */( of the &rade 'arks Act recognises both infringement as well as passing off actions. &rademark infringement is an infringement of exclusive rights attaching to a trademark without the authori6ation of the trademark owner or any licensee. &rademark infringement typically occurs when a person uses a trademark which may be either a symbol or a design, with resembles to the products owned by the other party. &he trademark owner may begin an officially permitted proceeding against a party, which infringes its registration. &here are two types of remedies are available to the owner of a trademark for unauthori6ed use of its imitation by a third party. &hese remedies are an action for passing off in the case of an unregistered trademark and an action for infringement in case of a registered trademark. An infringement action and an action for passing off are quite different from each other, an
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infringement action is a statutory remedy and an action for passing off is a common law remedy. Accordingly, in order to ascertain infringement with regard to a registered trademark, it is necessary only to establish that the infringing mark is deceptively similar to the registered mark and no further proof is required. In the case of a passing off action, proving that the marks are deceptively similar alone is not sufficient. &he use of the mark should be likely to deceive confusion.
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INTRODUCTION A trademark in relation to goods conveys to the general public and specifically to the consumers about the origin and quality of those goods, thereby acquiring reputation in the course of business and time. &herefore the concept of a trademark is the foundation of one4s business to distinguish from others. A good trademark is often the best salesman of the goods and is a visual symbol of goodwill and stamp of quality. A trademark is one of the elements of Intellectual +roperty ight >I+? and is represented by the symbol @ or . It is a distinctive sign, symbol or indicator which is used by an individual, business organi6ation or other legal entity to identify uniquely the source of its products or services to consumers, and to distinguish its products or services from those of other entities. It could typically be a name, word, phrase, logo, symbol, design, image, or a combination of these elements. &rademarks are used to facilitate and enhance the marketing of a commodity and is a sign that indicates to consumers the source and reputation of the affixer of the mark and provides an important advertising and sales tool. #very businessman who has spent considerable amount of money making his mark popular will try to secure it from usage by unscrupulous competitors. +rotection of trademark is important not only from the business point of view but also for the protection of consumer from fraud and imposition. &he &rademark Act of *%%%, both in letter and spirit, lays down that, while it encourages fair trade in every way and aims to foster and not to hamper competition, it also provides that no one, especially a trader, is 9ustified in damaging or 9eopardi6ing another4s business by fraud, deceit, trickery or unfair methods of any sort. &his necessary precludes the trading by one dealer upon the good name and reputation built up by another. &he first &rademark legislation was enacted in India in *%0B, but before that, protection to trademarks in the country was governed by the principles of common law based on #nglish cases. &he law relating to protection of this form of industrial property is intricate and complex. &he reputation of a business symboli6ed by a mark, under common law, can be protected only by an action for +assing off. egistration of a trademark under the &rade 'arks Act of *%%% gives statutory rights and slight infringement of it can invite an action for Infringement.
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However, even the unregistered trademarks are also protected as the Act itself provides that an action of passing off remedy is available for unregistered trademark.
IMPORTANCE OF TRADEMARK •
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&he importance of trademarks lies in their association with quality and consumer expectations in a product or service. &hey can be seen as serving four main purposesC
INFRINGEMENT OF A TRADE MARK Section -E>*? of the &rademarks Act, *%%% provides that a person shall be entitled to initiate legal proceeding to prevent or recover daages !or the in!ringeent o! a registered tradeark . Infringement occurs when someone else uses a trademark that is same as or
deceptively similar to registered trademark for the identical or similar goods or services as to cause confusion in the mind of the public. &his right of bringing an infringement action against the defendant has been conferred by Section -7 of the &rademarks Act, *%%%. Section -7 of the Act provides that the registration of a trademark gives to the proprietor of a registered trademark an e"clusive right to use the trademark in relation to the goods and services in respect of which the trademark is registered and to o#tain relie! in respect o! in!ringeent o! the tradeark.
&rademark infringement claims generally involve the issues of likelihood o! con!usion$ deceptive arks$ identical arks and dilution o! arks . ikelihood of confusion occurs in
situations where consumers are likely to be confused or mislead about marks being used by two parties. &he plaintiff must show that because of the similar marks, many consumers are likely to be confused or mislead about the source of the products that bear these marks. :ilution is a trade mark law concept forbidding the use of a famous trade mark in a way that would lessen its uniqueness. In most cases, trade mark dilution involves an unauthori6ed use of another=s trade mark on products that do not compete with, and have little connection with,
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those of the trade mark owner.
WHAT CONSTITUTES INFRINGEMENT* Section -% of the &rademarks Act, *%%% deals with infringement. In this context, the ingredients of Section -% >*? are as followsC8 a. &he plaintiff4s mark is registered. b. &he defendant4s mark is identical with, or deceptively similar to plaintiff4s registered markF c. &he defendant has taken any essential feature of the mark or has taken the whole of the mark and then made a few additions and alterations. d. &he defendant4s use of the mark is in course of the trade in respect of goodsDservices covered by the registered trademark. e. &he use of the infringing mark must be printed or usual representation of the marking advertisements, invoices or bills. Any oral use of the trademark is not infringement. f. &he use by the defendant is in such manner as to render the use of the mark likely to be taken as being used as a trademark. g. &he defendant4s use of the mark is not by way of permitted user and accordingly unauthorised infringing use. 5hile the above is the general proposition of law as per Section -% >*?, the various circumstances in which the trademark is infringed are enumerated in sub8sections -%>-? to >%? of Section -%.
INFRINGEMENT+ ,ARIOUS FACTORS
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In the case of %ockhardt Ltd. s. Aristo 'haraceuticals Ltd ./, 'adras High 1ourt, after holding the defendant4s mark GS+AS'8<#; deceptively and phonetically similar to GSPASMO-PROXYVON, summarised the law as followsC *. &he registered proprietor of a trademark has exclusive right to the use of the trademark in relation to the goods and services in respect of which the trademark is registered and to obtain relief in respect of infringement of the trademark in manner provided by the Act. -. 5hether it is deceptively or has become publici 9uris is a question of fact to be established. /. 5hen a number of marks, all have a common element, may it be prefix, suffix or root, i.e. essential part or the core of the mark, they come to be associated in the public mind as an indication of the same source, which misleads or causes deception or confusion. 0. It is the common element that has to be identified in an impugned mark and the registered trademark and if such common element is highly distinctive and is not 9ust a description or a commonly used word, the likelihood of deception or confusion would be very much there, despite the fact that it might differ in similarity in certain letters. (. &he nature of the commodity, the class of purchasers, the mode of purchase and other surrounding circumstances must also be taken into consideration. 2. 'arks must be looked at from the first impression of a person of average intelligence and imperfect recollection. E. 'arks must be compared as a whole, microscopic examination being impermissible. 7. &he broad and salient feature must be considered, for which the marks must not be placed side by side to find out the differences in design. %. verall similarity is the touchstone. *B. It is not the colour of the container or the difference of the product, but it is the statutory right to the word that has to weigh. **. &he plaintiff need not in general show prima facie case that is required to be shown must be something more than a case that will avoid the action being struck out as frivolous or vexatious and even if the chance of success at the trial are only twenty per cent, the statutory protection is absolutely necessary by way of an in9unction in order to prevent confusion or deception arising from similarity of marks.
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FOLLOWING ARE THE INSTANCES WHERE THE ACTS CONSTITUTED INFRINGEMENT OF TRADEMARK i.
ii.
TAKING SUBSTANTIAL FEATURE OF THE MARK a mark is infringed by another trader, if, even using the whole of it upon or in
connection with his goods, he uses one or more of the essential features. ADDITIONS Addition of extraneous matter, inconspicuous additions is infringement. If a person incorporates whole or part of a registered &rademark of another, the addition of other
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or matter would not save him from the charge of infringement. WHEN A MARK IS OPIED If the defendant absolutely copied the mark and made a facsimile representation of it, no further evidence is required. 5hen the similarities are so close as to make it impossible to suppose that such marks were devised independently of each other, in absence of evidence of common origin, the conclusion that one party copied the mark
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of another. MARKS LIKELY TO AUSE ONFUSION ikelihood of confusion occurs in situations where consumers are likely to be confused or mislead about marks being used by two parties. &he plaintiff must show that because of the similar marks, many consumers are likely to be confused or mislead about the source of the products that bear these marks. 5here the visual, aural and conceptual similarities is caused by the defendant4s trademark which causes confusion in the minds of the public as to its origin, then the mark is held to be an infringing mark.
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linked undertakings, there is a likelihood of confusion. 0 USE OF REONDITIONED OR SEOND ARTILES &he use of plaintiff4s mark on reconditioned goods may constitute infringement even
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if it is clarified that goods are not original but reconditioned. ( PRINTING OF LABELS "nauthorised printing of labels of the plaintiff will constitute infringement. 'oreover, if a copyright subsists in labels, it will constitute infringement of copyright as well.
) C/a22 P34562768g B, 92. C/a22 L/g62:6;2 L:<.= #00)$ RPC )1 & R/552+R/>;e 92. D/<<= 1"1 FSR &1"|Page
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GOODS MANUFATURED BY THIRD PARTY WOULD ONSTITUTE INFRINGEMENT 5hen the owner of a mark gets the goods manufactured by a third party under a
contract, solely for the mark, sale of the goods bearing the mark by such a !iii.
manufacturer to other person would constitute infringement. MARKS USED ALONG WITH OTHER"S MARK "se of the plaintiff4s mark along with the defendant4s name even if prominently
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displayed constitutes infringement.2 SIMILAR MARKS IN MEDIINAL PRODUTS 5hen the goods or products involved are medicinal products, confusion of sources or drugs or medicinal preparation caused by similar marks of the defendant would
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constitute infringement, although similarity in the marks would have been very less. MARKS WITH INTERNATIONAL REPUTATION USED UNAUTHORISEDLY In case of marks which have acquired international reputation, an action for its
protection against un8authorised use will lie even if the owner of the trademark does not have any business activity in India. E
WHO CAN SUE FOR INFRINGEMENT* &he plaintiff in an infringement suit may be eitherC *. &he proprietor of the registered trademark or his legal successor. -. A registered user of a trademark sub9ect to a prior notice to the registered proprietor and consequent failure of the registered proprietor to take any action against the infringer. /. An applicant for registration of a trademark. He can file an infringement suit to protect his right to continue with the suit which will sustain only if his trademark is registered before hearing the suit. 0. egal heirs of the deceased proprietor of a trademark. (. Any one of the 9oint proprietors of a trademark. 2. A foreign proprietor of a trademark registered in India when Infringement occurs in India.
WHO CAN BE SUED* % Le96 92. S7a7 #1"&$ RPC (-1 - T/??e8: P7a?a;e3:6;a52 L:<. ,2. We55;/e F/38
*. &he infringer who directly by his action causes infringement or who uses or contemplates or threatens to use a trademark infringing plaintiff4s right. -. &he master responsible for his servant4s act of infringement.
JURISDICTION Suit for infringement or for passing off is to be filed in the court not inferior to a :istrict 1ourt having 9urisdiction to try the suit. 7 :istrict 1ourt having 9urisdiction includes a :istrict 1ourt within the local limits of whose 9urisdiction, at the time of the institution of the suit or other proceedings, the person instituting the suit or other proceedings, or where there are more than one person, any of them whoC8 a. Actually and voluntarily residesF or b. 1arries on businessF or c. 5orks for gainF can bring in an action against the defendant.
PERIOD OF LIMITATION "nder the imitation Act, *%2/, the period of limitation for filing a suit for infringement of a trademark is three years from the date of infringement. 5here the infringement is a continuing one, a new course of action arises every time an infringement occurs.
ISSUES IN INFRINGEMENT SUITS &he issues that arise in an infringement action are the followingC8
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a. 5hether the plaintiff is entitled to file a suitF i.e. whether he is proprietor of a registered trademark or a registered. b. 5hether the use or proposed use of the mark by the defendant is an infringement of the registered trademark. c. 5hether the defendant has succeeded in establishing one or more of the defences set up by him. d. If the plaintiff4s succeeds in the suit, what reliefs he is entitled toJ e. 5hether the plaintiff is entitled to any interlocutory reliefJ f. 5hether there has been an actual instance of deception and confusion amongst the publicJ
E,IDENCE IN INFRINGEMENT ACTIONS &he fact of registration of the plaintiff4s mark is to be proved by production of a copy of the entry on the register certified by egistrar and sealed with the &rademark egistry. % &he certified copy will contain all the entries in the register relating to the mark including the conditions, if any, sub9ect to which a mark is registered. In all legal proceedings relating to a registered trademark, the original registration of a trademark and all subsequent assignments and transmissions will be prima facie evidence of the validity. &he plaintiff must establish that the use of the mark complained of comes within the scope of definition of infringement. 5here the defendant has absolutely copied the mark and made a facsimile representation of it, no further evidence is required. 5here the mark used by the defendant is not identical with the registered trademark, the court has to determine the two marks are deceptively similar. pinion evidence is not admissible, but statement of witnesses to the effect that they themselves would be deceived is admissible. #vidence as what constitutes the essential feature of the mark is admissible.*B
ACTS NOT CONSTITUTING INFRINGEMENT #SECTION (0$
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/. 5hen the use of the mark by the defendant is not an infringement under Section -%F 0. 5hen a person uses a trademark in accordance with honest practices in industrial and commercial matters that do not take unfair advantage. (. 5hen a person uses a trade mark in relation to goods or services indicating character, quality or geographical origin 2. 5hen a person uses a trade mark in relation to services to which the proprietor has already applied the mark or registered user the ob9ect of the use is to indicate that the proprietor or the registered user has performed the services. E. 5hen a person uses a trademark, which is sub9ect to any conditions or limitations, beyond the scope of such conditions or limitations will not constitute infringement. 7. 5hen a person uses a mark in relation to goods to which the mark has been lawfully applied, or where the registered proprietor has consented to the use of the mark. &his applies to cases where goods are purchased in bulk and sold in retail applying the mark. %. 5hen a person uses a mark in relation to parts of a product or accessories to the goods in respect of which the mark is registered if the use is reasonably necessary to indicate that the goods so adapted. *B. 5hen a person uses a mark or a similar mark in the exercise of a right conferred by independent registration. **. 5hen a person assigns a trademark to another, this will not affect the right of that person to sell or deal in the goods bearing that mark.
CASE ANALSIS ON INFRINGEMENT •
(astrol Liited s '.K. Shara 11
Fa$%& '( %)* $a&*
+laintiff is the registered owner of the trade marks 1astrol, 1astrol Ktx And 1astrol Ktx - in respect of oils for heating, lighting and lubricating. :uring the month of :ecember *%%0, plaintiffs came to know that the defendant was carrying on business of selling multigrade engine oil and lubricants under the trade mark =1astrol Ktx L 1astrol 1rb= I; I:#;&I1A containers as used by the plaintiffs. +laintiff filed a suit for perpetual in9unction. H*+,
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Hon4ble :elhi High 1ourt while passing an ex parte decree held that the user of the said trade marks by the defendants, who have no right whatsoever to use the same is clearly dishonest and is an attempt of infringement. &he prayer of the plaintiff is accepted and they are restrained by a decree of in9unction from selling, advertising directly or indirectly in multigrade engine oil with the aforesaid trade marks in containers which are similar to the containers being used by the plaintiffs. •
)an#a"* La#oratories Ltd. s. +ua 'haraceuticals Ltd .*-
Fa$%& '( %)* a&*
&he plaintiff company manufactured drugs under the trade name M CalmposeM. &he defendant company subsequently floated its similar product under the trademark M CalmproseM. H*+,
&he Hon4ble :elhi High 1ourt held that the two trademarks having appeared phonetically and visually similar and the dimension of the two strips being practically the same including the type of packing, the colour scheme and manner of writing, it is a clear case of infringement of trade mark and the ad interim in9unction granted in favour of the plaintiff. ;o one can use the trademark which is deceptively similar to the trademark of other company. As in the case of ,la"o Sith Kline 'haraceuticals Ltd. v. -nitech 'haraceuticals 'vt. Ltd. 1, the plaintiff claimed that defendants are selling products under
the trademark FEXIM that is deceptively similar to the plaintiff4s mark PHEXIN, which is used for pharmaceutical preparations. &he defendants are selling anti8biotic tablets with the trademark NFEXIM with the packing material deceptively similarly to that of the plaintiff, whereby intending to not only to infringe the trademark but also to pass off the goods as that of the plaintiff as the two marks are also phonetically similar. &he 1ourt restrained the defendant from using the trademark N FEXIM or any trademark deceptively similar to the trademark of the plaintiff N=, any labelDpackaging material deceptively similar and containing the same patter PHEXIN n as that of the plaintiff.
1 AIR 1"" De576 )) 1( !MANUDE)000&' 1) | P a g e
If a party using the deceptively similar name only for a single shop and not spreading its business by use of that particular name then also that party could be stopped from using the trade name of other company. &his is given in the case of M/s 0ikanervala v. M/s Aggaral 0ikanerala1 where the respondent was running a sweet shop in with the name of AGGARWAL BIKANERVALA and the plaintiff was using the name BIKANERVALA
from *%7* and also got registered it in the year *%%-. hence they applied for permanent in9unction over the use of the name AGGARWAL BIKANERWALA for the sweet shop by the defendant. 1ourt held in favour of the plaintiff and stopped defendant from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in food articles for human consumption under the impugned trade markDtrade nameDinfringing artistic label
AGGARWAL
nameDinfringing
BIKANER WALA
artistic
work
or
containing
from the
using
any
trade
nameDmark
markDtrade BIKANER
WALABIKANERVALA= or any other nameDmarkDartistic work which is identical or
deceptively similar to the plaintiff=s trademark BIKANERVALA. If the trademark is not registered by any party but one party started using it before the other then first one would have the legal authority on that particular mark. As in the case of +harial Industries Ltd. and Anr. v. M.S.S. 3ood 'roducts 14, where appellants were using
the brand name 'AIO1HA;: for their product and the respondents were using the name MANIKHAND which is similar to the previous one and both parties have not registered
their trademarks. 1ourt held in this matter that even though plaintiff have not registered their trademark they are using it from long time back and hence court granted perpetual in9unction against the respondents. #ven if a company is not doing business in country, but it is a well8known company or well8 known goods, then also it would be entitled to get authority over its trademark. As given in case of 5.). +ongare v. %hirlpool (orp. Ltd .*2, where the defendants have failed to renew their trademark P5HI+4 and in the meantime the plaintiffs have got registration of the same. In this case court said that though there was no sale in India, the reputation of the
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plaintiff company was travelling trans8border to India as well through commercial publicity made in maga6ines which are available in or brought in India. &he G5HI+ has acquired reputation and goodwill in this country and the same has become associated in the minds of the public. #ven advertisement of trade mark without existence of goods in the mark is also to be considered as use of the trade mark. &he maga6ines which contain the advertisement do have a circulation in the higher and upper middle income strata of Indian society. &herefore, the plaintiff acquired transborder reputation in respect of the trade mark G WHIRLPOOL and has a right to protect the invasion thereof.
WHAT THE PLAINT SHOULD CONTAIN* &here is no special form of pleading prescribed for an action for infringement. &he pleadings must contain a clear and conscience statement of all material facts relied upon by the plaintiff, but not evidence. It should specifically allege what the defendant has infringed or threatened to infringe in case of registered mark. In case of passing8off, the plaintiff must specifically allege the wrong that has been done to his goodwill or business and also the act of misrepresentation committed by the defendant. +articulars of the acts committed by the defendant which form the basis of allegation must be given. 5here the fraud is desired to be raised, it must be clearly pleaded, and particulars of fraud must be stated. 5here both the infringement and passing off are combined in the suit, the plaintiff should state that by virtue of such user the mark has become distinctive of his goods.
RELIEFS IN SUIT FOR INFRINGEMENT "nder Section */( of the &rademarks Act. *%%%, the reliefs which a 1ourt may grant for passing off and for infringement includes the followingC8 /. A$$'0n%& '( Pr'(i% Account of profits are the actual profits which the defendant has made by infringing
the legal rights of the plaintiff. Sub8section >*? of Section */( provides for grant of relief which includes, at the option of the plaintiff, either damages or an account of
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profit. In taking account of profits, the damage the plaintiff have suffered is totally immaterial. &he ob9ect of account of profit is to give to the plaintiff the actual profits the defendant has made and of which it is established that the profits were improperly made.*E Section */( >/? expressly enacts that where the court is satisfied that it is a case of innocent infringement, it shall grant only nominal damages.
i.
Any loss of trade actually suffered by the plaintiff directly from the acts complained of, or properly attributable to in9ury to the plaintiff4s reputation, business, goodwill
ii. iii.
and trade and business connection caused by the acts complained of. :amages may be awarded even though there is no deception. 5here the defendant4s goods are similar in quality to the plaintiff4s goods, the defendant4s wrongful act may cause in9ury to the plaintiff4s business reputation.
In Yahoo Inc. vs. San6a* . Shah 17, the :elhi High 1ourt held that he defendants passed off their goods as if the goods were manufactured by the plaintiff using the deceptively similar GYahoo”. &he Hon4ble High 1ourt not only granted permanent in9unction restraining the defendants from the use of the trademark GYahoo”, but also decreed for damages amounting s. (, B(,BBBD8 in favour of the plaintiff. 3. In40n$%i'n In9unction is one of the reliefs which an aggrieved person may obtain in any suit for
infringement of a registered trademark or for passing off of the registered trademark or unregistered trademark. &he remedy of in9unction is an effective remedy in preventing the infringement of registered trademark or unregistered trademark. Section */( of the &rademarks Act, *%%% grants the relief of in9unction. 5hile granting an in9unction, the 1ourt should always rely on the fact that whether the
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balance of convenience lies with the plaintiff and whether an irreparable damage or in9ury would occur to the plaintiff if in9unction is not provided for against the defendant. Section */( >-? further provides for ex parte in9unction or any interlocutory order for any of the following matters, namelyC8 i. ii.
iii.
to the sub9ect8matter of the suitF estraining the defendant of or dealing with his assets in a manner which may adversely affect plaintiff4s ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.
In the case of 'ra#hu Shankar Aggaral vs. Anand Kuar +eepak Kuar$ 18 the :elhi High 1ourt held as followsC8 “Whenever a court considers it necessary in a particular case to pass an order o in!unction without notice to the other party" it must accord the reason or doin# so" and also how the o$!ect o #rantin# in!unction itsel would $e deeated i e% parte order is not passed" due to delay. An order passed without such reasons is lia$le to $e vacated.” IN5UNTION MAY BE OF FOLLOWING TYPES I.
An%'n Pi++*r Or,*r &hese are ex parte orders to inspect defendant4s premises. A 1ourt may grant such an
order to the plaintiff where there is a possibility of the defendant destroying or II.
disposing of the incriminating material. Mar*!a In40n$%i'n In such an order, the 1ourt has the power to free6e defendant4s assets where there exists a probability of the assets being dissipated or cancelled so as to make
III.
9udgement against him worthless or un8enforceable. In%*r+'$0%'r6 In40n$%i'n It is the most commonly sought and most often granted form of in9unction. It serves to take action against the defendant on the basis of past infringement. &he interlocutory in9unction is an order restraining the defendant from continuance of the acts which
IV.
amount to infringement. It serves the purpose of preventing further infringement. P*r7*%0a+ In40n$%i'n
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It is an order restraining the defendant totally, for all times to come, from doing any act which infringes the right of the proprietor of the trademark. +erpetual in9unction is generally granted when the suit is finally decided.
CONCLUSION &hus, from the above discussion it can be said that protection of trademark is important not only from the business point of view but also for the protection of consumer from fraud and imposition. However, it is beneficial if combined action for infringement and passing off is brought in one suit as incorporating a plea of infringement, if the mark gets registered can always amend the plaint. 3ut in an action for infringement alone the plaintiff may not be allowed to include a fresh cause of passing off in order to save the action. Since the scope of passing off action is wider than an infringement action, if an action fails, there is a chance of other succeeding. As stated in the preamble of the &rademarks Act, *%%%, the law provides for a better protection of trademarks, the fact that the trademark law provides protection to trademarks has come out to be a reality. &he present Act expressly recognises the common
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law remedy and thus saves both the registered and unregistered trademarks from being misused.
BIBLOGRAPH BOOKS REFERRED
•
Oailasam and Qedaraman aw of &rademarks and +atent Keographical8indications Act8Intellectual +roperty ights >+ocket Si6e #dn.? Intellectual +roperty ights in India by QO Ahu9a Qenkateswaran on aw of &rademark law and +assing off by Oapil 5adhwa, :r.
•
Abhishek 'anu Singhvi aw elating to Intellectual +roperty ights by :r. '.O 3handari
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JOURNALS REFERRED • • •
India aw Rournal Indian Society of International aw Rournal of aw and #conomics
WEBSITES VISITED • • • •
• •
www.wikipedia.org www.cll.com www.tm8india.com httpCDDwww.academia.eduDEE%(2E(D&A:#'AOA5I;I;:IA8 A1riticaland1omparativeStudy www.thomsonreuters.com www.indlii.org
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