Introduction
Trademark infringements have serious consequences. It takes many years of hard work away from the owner of the brand. These infringements not only cause deceptive similarities but also dilute the brand and dignity of the trademark holder.
Such disputes should be resolved. The traditional way to resolve a dispute is through courts. However, litigation costs are high, and there is a lot of pendency of cases in the court. So there are various alternative remedies available to the parties to resolve the disputes. In this blog, the ways to handle trademark infringement without the intervention of the court have been discussed.
Understanding Trademark Infringement
In order to resolve a trademark dispute, first of all, we have to know what is trademark infringement. The Trademark is deemed to be infringed when someone who does not have any rights to use the mark uses the mark of the other and such act causes deceptive similarity and causes confusion to the public.
Then such act is called Infringement. Unauthorized use of trademarks by others causes confusion to the public and it causes litigation. But, there are also some other alternative remedies to solve the disputes.
Handling Trademark Infringement
In the Trademarks Act, 1999 there are provisions to approach the court to settle the matter of Trademark infringement. But there are other ways as well to settle the trademark infringements without going to court such as cease and desist letter, mediation, negotiation etc.
Identifying The Infringement
Many businessmen are happy that their trademark has been registered in India and they wrongly believe that their brand is protected. But the problem is that the mark has been protected only in India and not in Foreign countries.
So that there are chances of trademark infringement in the place outside India. If the owner thinks that his products are being sold in foreign countries then he shall apply for international trademark registration through the Madrid Convention.
Sending A Cease And Desist Letter
When the trademark owner learns of infringement, he has the right to write a cease and desist letter for trademark infringement. The trademark infringement letter is the same as a legal notice.
It will declare that the owner is the owner of the registered trademark and ask the other party to cease using it. The cease and desist trademark notice should further state that the proper legal action will be taken against the infringer if he continues to use the trademark. A cease and desist trademark template can be helpful in drafting an effective notice.
Negotiation
If the infringer has not obeyed the cease and desist letter trademark infringement, then the Owner shall initiate a trademark negotiation settlement. Negotiation is the process in which two parties sit together, negotiate and reach a mutually settled agreement. In negotiation, there is no third party involved. So, It is one of the easier ways to arrive at an out-of-court trademark settlement.
Mediation
Trademark mediation process is the process of alternative settlement of disputes in which a neutral third party is appointed to arrive at a mutually settled agreement. If the parties have not arrived at a solution in negotiation, then they may prefer mediation. The Mediation award will be awarded only with the consent of the parties. If any of the parties disagrees with that solution, then it cannot be taken. The Mediation award cannot be appealed because the award is being granted with the consent of the parties.
Legal Action
Even after sending cease and desist trademark infringement letters, negotiation and mediation, if the infringer did not respond, then the owner of the Trademarks shall take appropriate legal action. There are various remedies for trademark infringement available as per the Act. Passing off is a remedy for trademark infringement, even if the trademark is not registered. Infringement of trademark and remedies suit shall be filed for the marks that are duly registered.
Documentation
It is not sufficient to initiate the mediation, conciliation and cease and desist notice for trademark infringement. The failure to make a document of all these activities will not be useful. Hence, the documents can be used if the matter goes to court. Keep records of all trademark infringement notice sample communications and responses.
Real World Example: A Brand Protected Through Negotiation
A Cosmetic company had a registered brand and they found that a retailer was using a similar logo for their business activities. They sent a sample cease and desist letter for trademark infringement and no response was found. Hence, they made a phone call and conducted negotiation through phone calls and negotiated peacefully. Within 3 weeks, the infringer published a notice and the problem was resolved without going to court.
Smart Enforcement Without Courtroom
Trademark enforcement without litigation need not always be taken to court. With appropriate legal advice, right strategy and timely action, it can be solved easily without going to courts that are private, economical and non-sensitive. If the matter goes to court, then the rivalry will cause between the parties and the ego and enmity takes place. Hence, the better option is to solve the dispute in an alternative manner. In the evolving business landscape, smart enforcement is not just about defending rights, it's about doing so with agility, foresight, and professionalism.