What to do when someone uses your trademark.

You have worked hard and brainstormed day and night to come up with the design and logo for your brand, so what can you do to prevent other companies from using it? What can you do to make sure that no one infringes your Intellectual property rights?

Well, it’s not exactly simple and trademark laws can confuse even the savviest business owners. The trademark act of 1999 lays out the foundation of trademark act. A trademark is a special symbol for distinguishing the goods offered for sale or otherwise put on the market by one trader from those of another. In India, the trademarks have been protected for over four decades as per the provisions of the Trade and Merchandise Mark (TMM) Act of 1958. India became a party to the WTO at its very inception. One of the agreements in that related to the Intellectual Property Rights (TRIPS). In December 1998 India acceded to the Paris Convention.

That’s what the act states, now let’s get back to the question, what to do when someone uses your trademark? 

·         Make sure if there actually is a trademark infringement.

Before diving into a lawsuit, you need to make sure if a problem actually exists. To do that, let’s review a few trademark facts,

First, trademark infringement occurs only when consumers are likely to be confused by the dual use of the trademark and whether the mark is being used on competing for goods and services.

The next factor to consider is the location. If you operate a flower shop in Delhi and someone opens a similarly named flower shop in Dehradun. This likely isn’t considered infringement because customers are highly unlikely to confuse both. Granted, if your business becomes famous across the country, you may have a greater chance of claiming infringement regardless of location. 

Another often-confused aspect of trademark law is that names can infringe on one another even if they aren’t identical. Courts often consider “sight, sound and meaning” when determining if two marks are similar. So adding an "s" to make a name plural isn’t enough to distinguish it. Or try to name your fast food restaurant “McDowell’s,” and you’ll quickly see that marks don’t need to be identical to cause infringement. 

·        Take action.

If you believe that the other name is a) being used on competing goods and services b) customers would likely be confused by the two names and c) the other name is being used in your same geographic region, then you should take action.

The first step is to contact an attorney specializing in trademark law. He or she will help you through the next steps.

Trademark issues typically begin by sending a cease-and-desist letter to the infringing business and demanding that they stop using your mark. If the alleged infringer continues to use your trademark after receiving your letter, possible remedies include preventing further use of the mark in addition to money damages. You can ask the court to have the infringer pay you any money they made as a result of the infringement as well as any damages that your business may have suffered as a result of the infringement.

·         But the most important thing is to file a trademark beforehand.

Too often, small-business owners don’t think about trademarks until it is too late, and they see someone else using their company or product name. At that point, it becomes a fight over who owns the name and who was using it first. Therefore, put yourself in the best possible position by applying for your trademark early on. This is why the most important step in trademark protection is applying for your trademark as soon as possible.

CoinproBiz Solutions has been established to provide exclusive services in the field of Company Registration, Intellectual Property Rights, Trademarkregistration, Copyright Registration and allied services, with the help of specialized and experienced professionals from varied backgrounds such as Company Secretaries, Chartered Accountants, Corporate Lawyers and Business Professionals.