ESSENTAILS OF INFRINGEMENT

1. The taking of an essential feature of the mark or taking the whole of the mark and then making a few additions and alterations would constitute infringement.

• The infringing mark must be used in course of trade, i.e., in a regular trade wherein proprietor of mark is engaged.

• The use of the infringing mark must be printed or usual representation of the mark in advertisements, invoices or bills. An oral use of trademark is not infringement.

• Any or all of the above acts would constitute infringement if the same is done in such a manner as to sender the use of the mark likely to be taken as being used as a trade mark.

SOME FORMS OF INFRINGEMENT

A registered trademark is infringed if used in the course of trade by a person other than the registered proprietor or permitted user of such trademark. The infringement occurs because such mark used by the one other than the registered proprietor or permitted user is likely to cause confusion in the minds of public or is likely to cause impression of association with the registered trademark and such confusion is caused because of the identity of such mark with the registered trademark as also the similarity of goods or services covered by such registered trademark as also the similarity of goods or services are covered by such registered trademark. The confusion would be also be caused because of such marks identity with the registered trademark as well as the identity of goods or services covered by such registered trademark.

In a case where the infringing mark is identical with the registered trademark and the goods or services are also identical with the goods or services covered by the registered trademark the court shall presume that such mark is likely to cause confusion on the part of public.

Infringement of a trademark would also occur if a person who is not registered proprietor or permitted user of such registered trademark uses in the course of trade a mark which is identical or similar to the registered trademark.

Infringement would also occur if such a person uses a mark which is used in relation to goods and services which were not similar to those for which the trademark registered.

A registered trademark is also infringed by a person who applies such trademark to a material intended to the used for labelling or packaging goods, as a business paper or it is used for advertising goods or services provided that when he applied the mark in such manner, new or had reason to believe that such application of the mark was not duly authorised by the proprietor or a license of the registered trademark.

A registered trademark will also be infringed by a spoken use of words as well as by their visual representation in cases where the distinctive element of the registered trademark consists of or includes such works.