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Trademark Infringement
Infringement means the use of a particular thing without the permission of the owner. The first and foremost cause underlying the registration of trademarks is to prevent other persons from using a registered trademark. In general, no claim can be made regarding infringement of a trademark which is unregistered. Once a trademark is registered, rights are conferred upon the proprietor of the trademark to use it in any way which is not unlawful. 

In case of trademarks, if any person who is not the proprietor uses any trademark which is identical or deceptively similar to that of a registered trademark, then it would tantamount to infringement. There are several other cases when a trademark is infringed upon such as, identity of a mark with respect to a particular class of goods is similar to that of a registered trademark, is likely to cause confusion to the public or if the registered trademark is of repute in India and the mark has been used without due cause and results in the detriment of the mark.

When a registered trademark is affixed to any goods or packaging or such a mark is used for import or export, the person who uses the mark is said to have infringed the registered trademark. Even, advertising which is detrimental to the repute or the distinctive character of the registered trademark amounts to infringement of it. Infringement of trademarks attract civil and criminal penalties.

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Trademark Passing-off
Passing off is a common law tort for which remedy lies in the civil court in the form of damages. Passing off refers to misrepresentation of others goods by a person as his own. The Trademarks Act, 1999 does not provide a remedy for passing off of a trademark. The difference between infringement and passing off is that for a claim for passing off, the trademark need not be registered.

In cases of passing off claims, the Court may formulate questions such as whether there has been a misrepresentation on the part of the defendant, whether such misrepresentation has caused confusion in the minds of the general public, the nature of goods in whose respect the marks are used and whether the one mark is deceptively similar to the other.

The Trademarks Act, 1999 provides for damages or an accounts of profit in case of infringement or passing off which may also include the delivery of infringing labels the marks for destruction and erasure. A suit for passing off shall be filed in the district court or courts superior to it and within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding the person instituting the suit or proceeding or where are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain.

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Copyright Infringement
The Copyright Act, 1957 affords protection to the owner/author of a literary, dramatic, musical, artistic, and cinematography and works relating to sound recording. When a copyright is obtained by the author of a work, it validity extends to a period of sixty years even after the death of the owner. The author has the right to assign the copyright, licence and relinquish his rights.
A copyright is said to be infringed upon by a person when he does any act for which the author has exclusive rights, or communicated such copyrighted work to the public without the licence from the copyright owner or the Registrar of copyrights. If without the authorization of the owner of copyright or the registrar of copyrights, any person sells or hires or offers for hire or sale or distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or by way of trade exhibits in public, or imports into India any infringing copies of the work, then such a person is said to have infringed the copyright.

The remedies available to the owner of copyright is both civil and criminal. The civil remedies include damages, injunction or accounts or other such remedies conferred by law relating to infringement. Suits relating to infringement shall be instituted in the District court having jurisdiction. Any person who knowingly infringes or abets the infringement of copyright shall be punished with imprisonment and fine extending to three years and two lakhs respectively.

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Copyright Passing-off
Passing off is the act of misrepresenting another person’s goods as his own. There is no statutory remedy for the tort of passing off but a remedy exists under the common law. Section 55 of the Copyright Act, 1957 provides for civil remedies. In cases where a copyright has been infringed the person who is the owner of such copyright is entitle to civil remedies such as injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right.

Under section 55 the word ‘otherwise’ for remedies provided include the right to sue under common law for passing off of the copyrighted work of the owner. For example, a copyright maybe obtained in respect of a creative artistic design which may form a part of a logo. If such an artistic design is infringed upon by any person and used in his goods without authorization from the owner, then he is liable under the common law tort of passing off.

In International Association of Lions Club v. National Association of Indian Lions, 2006 SCC OnLine Bom 89, it was held that as far as the suit for passing off for the copyright design is concerned, the proprietor or owner of the copyright is entitled to maintain the suit without its design is registered for copyrights under the said Act. The registration thereof is only a prima-facie evidence of ownership of such a copyright design.

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Designs Infringement
Under the Designs Act, 2000, no person during the existence of copyright in any design it shall use the copyrighted design in the sale of any article for the class of articles in which the design is registered. Any fraudulent or obvious imitation also constitutes infringement of copyrighted designs. The copyrighted design can be used upon license or written consent of the registered proprietor.

Importing of article in whose class a copyrighted design exists also amount to infringement if such import of articles is for the purpose of sale and is done without authorization of the registered proprietor of the design. If any person causes to be published or exposed for sale of any article knowing that the design or any fraudulent or obvious imitation thereof has been applied without the consent of the registered proprietor, then such person becomes liable under this act.

The person who does any act as mentioned above becomes liable to pay for every contravention a sum extending up to rupees twenty five thousand recoverable as a contract or debt. A suit for damage or injunction can also be instituted against the person infringing the copyrighted design. Such a suit, according to the Designs Act must not be instituted in any court inferior to that of a District Court.

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Design Passing off
Under the Designs Act, 2000, there is no express provision affording protection for passing off of the Designs. The remedy for the tort of passing off is provided under common law. In SmithKline Beecham v. Hindustan Lever, the Delhi High Court held that passing off remedy is available also to the designs under the Designs Act. In Micolube India v. Rakesh Kumar the court opined that a design, which is an unregistered mark, is used for the purpose of a business and that the plaintiff’s goods and/or services had acquired a reputation and/or goodwill, which were identified in the minds of the consumers, by associating the design/the mark, with the goods and/or services and hence a plea for passing off is tenable and that the plaintiff would not have to look to the Designs Act, for instituting such an action.  

The court reasoned in Good Earth v. Krishna Mehta consumer of any particular brand recognise their products with the design. Hence, the protection for passing off has been judicially extended to the design proprietors though there was a lack of legislative intent for affording such protection under the Designs Act.

Patent Infringement
Once a patent has been granted to the patentee, the right to exclusively use the patent subsists for twenty years with him. If a person uses the patent without the authorisation of the patentee in any manner, it would tantamount to patent infringement. If the subject matter of the patent is a product, the making, using, offering for sale, selling or importing for those purposes that product in India would amount to infringement. If the subject matter of a patent is a process, then the act of using that process, and from the act of using, offering for sale, selling or importing for those purposes the product obtained directly by that process in India amounts to infringement.

A patent infringement suit must be initiated in the District Court or any other superior Court to it. If a patentee proves that a product obtained by a process is identical to the product obtained from a patented process, then burden to prove that the process is not identical lies upon the defendant. An important defence available to the defendant which does not constitute an infringement is the act of making, constructing, using, selling or importing a patented invention solely for uses reasonably related to the development and submission of information required under any law.

The remedies available to the patentee in case of infringement include an injunction and, at the option of the plaintiff, either damages or an account of profits. The court may also order for the infringing goods to be seized, forfeited or destroyed. A person who holds a licence to use a patent shall also have the right like the patentee to sue for the infringement of the patent. The court may also in a suit for infringement appoint an independent scientific adviser, to assist the court or to inquire and report upon any such question of fact or of opinion.

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