Preventive Measures and Remedies applicable for the wilful infringement of Trademarks and others Intellectual Property rights-

TANMOY MUKHERJI INSTITUTE OF JURIDICAL SCIENCE

Dr. Tanmoy Mukherji

Advocate

 

Preventive Measures and Remedies applicable for the wilful infringement of Trademarks and others Intellectual Property rights-

Tanmoy Mukherji

Advocate

Intellectual Property Rights (IPR) protect creation of human mind such as inventions, literary works, artistic works, trademarks, designs, geographical indications, and trade secrets.

Preventive Measures-

i) Registration of intellectual property rights-

Registration creates legal ownership and facilitates enforcement.

IP Right	Governing Law
Trademark	Trade Marks Act, 1999
Copyright	Copyright Act, 1957
Patent	Patents Act, 1970
Design	Designs Act, 2000
GI	GI Act, 1999.

 

ii) Use of warning symbols-

TM →Unregistered Trademark

® →Registered Trademark

© →copyright

These symbols notify the public regarding ownership.

iii) Licensing and Franchise Agreements-

iv) Confidentiality Agreements-

Example — Cocacola formula protection through trade secret law.

v) Market Surveillance-

Includes-

→Online monitoring

→E-commerce surveillance

→Physical market inspections

vi) Custom protections-

Under Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007-

vii) Digital Protection measures-

Civil remedies-

i) Injunction-

ii) Damages-

Compensation for loses suffered.

Damages-

→Compensatory Damages

→Punitive Damages

→Nominal Damages

iii) Account of Profits-

Wrongful profits earned by infringer are transferred to the rightful owner.

iv) Delivery up and Destructions-

v) Declaratory relief-

Court declares ownership rights of plaintiff.

Criminal remedies-

Applicable mainly under-

→Trade Marks Act, 1999

→Copyright Act, 1957.

Trade Mark Offences- Section 102 – 105- Trade Marks Act, 1999

→ Falsifying Trade Mark

→Imprisonment

→Selling Goods with false marks

→Fine

→Possession of counterfeit labels

→Seizure of Counterfeit Goods

Copyright offences- Section 63- Copyright Act-

→Infringement

→Fine

→Punishment for knowing Infringement

Administrative remedies-

i) Opposition proceedings-

A person may oppose registration of a deceptively similar mark.

ii) Rectification-

Removal of wrongly registered trademarks.

iii) Customs Recordation-

Right holder records Intellectual Property with customs. Customs automatically intercept counterfeit import.

Reference cases –

Wilful infringement Trademarks and other intellectual Property Rights threatens innovation, business reputation and customer welfare.

Indian law provides a comprehensive enforcement mechanism through preventive safeguards, civil remedies, criminal sanctions and administrative measures.

This framework is further strengthened by the TRIPS Agreement and the role of World Intellectual Property Organisation in promoting Global IP Protection.