WHAT IS AN INFRINGEMENT?

Law Intellectual Property
07-Oct-2021
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The infringement is the violation of a right that has been granted to the proprietor, author or inventor under the provision of law laid down in the Intellectual Property Right.

Apart from the simple and plain meaning of infringement, the infringement has been defined under the provision of the Trademarks Act, Copyright Act and Patent Act.

THE TRADEMARK ACT

The infringement of a registered trademark is defined under section 29 of the trademark act that a registered trademark is infringed by a person who is neither a registered proprietor nor the person has got any permission to use, use the mark in the course of trade which is identical with, or deceptively similar to, the trademark in relation to goods or services in respect of which the trademark is registered. 

Furthermore, the trademark is said to be infringed if that mark has been used by a person, which is identical and similar to the mark and seminal to the class of goods and services, which is likely to create confusion or deception to the consumer.

EXCEPTION

The trademark, being used as a common name, will not amount to the infringement of trademark, for instance, using the trademark in the name of Hindu deities such as Shri Ram, Shri Ganesh, Shri Krishna Etc.

THE COPYRIGHT ACT

The infringement under the Copyright act has been defined under section 51 of the act, the infringement under the copyright is any act of the person in violation of the right which has been granted to the author of literary work, or artistic work shall be liable for copyright infringement of that particular work.

It is further defined that if a person does anything wherein, the exclusive right to do has been conferred upon the owner of the copyright under the Copyright Act

The Infringement of Copyright also includes 

  • The sale or hire, by way of trade displays or offers for sale or hire, of the work of the author

  • Distribution for the purpose of trade or to such an extent as to affect the owner of the copyright prejudicially

  • by way of trade exhibits of the work of an author in public, or

  • imports  any infringing copies of the work to India

THE PATENTS ACT

The infringement under the patent act has not been defined, but the act of selling, importing and using the patented product without the patentee's permission will amount to infringement.

The act of using the patented process or selling the process from which the product has been obtained without the permission of the patentee will amount to infringement.

Section 104-115 of the Patent act, has laid down the guidelines in order to file suit before the courts of respective jurisdiction with regard to the infringement of the patent.

BURDEN OF PROOF

  • The burden of proof with regard to infringement of trademark lies on the plaintiff to derive that the registered trademark has been infringed, and the alleged infringed mark gives rise to the deception of goods and services for which the mark has been registered.

  • The Burden of Proof in case of patent infringement lies on the defendant to establish that the process used by him to obtain the product is different from the Patented Product.

Know more about Burden of Proof under evidence act


Author Bio: Adv. Mudit Kaushik, a seasoned advocate with over a decade of experience, holds a degree from the renowned Campus Law Centre at Delhi University. Mudit has deep expertise across various areas of law, including intellectual property, contracts, corporate law, consumer protection, cybercrime, employment issues, commercial litigation, and arbitration. He skillfully handles complex legal matters in these fields.

What truly distinguishes Mudit is his focus on clear communication and well-designed strategies, ensuring that clients fully understand their situation and empowering them to make wise decisions. This client-centered approach, combined with consistently achieving favorable outcomes, demonstrates his commitment to upholding the highest professional standards.

Mudit consistently delivers exceptional results, whether he's protecting intellectual property, navigating complex contracts, or resolving legal disputes, showcasing a dedication to excellence that instils confidence and positively impacts every client.