How is infringement of Trademark Determined?

May 25, 2023

This article has been written by ,Mr TEJESHWAR PANDEY, a 3rd year student of SYMBIOSIS INTERNATIONAL UNIVERSITY ( SYMBIOSIS LAW SCHOOL,NAGPUR)

Trademark infringement is determined through a legal process that involves analyzing the similarity between two marks and assessing the likelihood of consumer confusion. Here are the general steps involved in determining trademark infringement:

Ownership: The first step in a trademark infringement analysis is to determine who owns the trademark. This involves checking if the trademark is registered with the relevant trademark office and identifying the owner of the trademark.

Similarity: Once ownership has been established, the next step is to compare the two marks to determine if they are similar in terms of appearance, sound, meaning, and overall commercial impression. This analysis is usually done side by side, looking at the two marks together.

Likelihood of confusion: If the marks are found to be similar, the next step is to determine the likelihood of confusion. This involves analyzing various factors, such as the strength of the trademark, the similarity of the goods or services, the channels of trade, and the sophistication of the consumers.

Use: Finally, it is important to determine whether the accused party is actually using the mark in commerce. If the accused party is not using the mark, then there is no infringement.

If it is determined that a trademark has been infringed, the trademark owner may be entitled to damages, injunctive relief, and other remedies.

Sorts of Patent Encroachment

Direct encroachment: Direct encroachment is the most evident and normal kind of encroachment. This encroachment incorporates promoting, deal or business utilization of a comparative licensed thing or innovation that carries out considerably indistinguishable roles. Direct encroachment is of two kinds – strict and nonliteral. Strict encroachment happens when each part in the patent determination has been utilized in the claimed encroaching item/gadget or cycle. Non-strict encroachment happens while the encroaching gadget or process might be comparative or identical to the guaranteed creation (carries out considerably a similar role, in significantly the same way and to accomplish considerably a similar outcome.

Strict: When the charged item/process falls in the extent of patent cases then the encroachment is known as exacting encroachment. One of such case is Polaroid Corp v. Eastman Kodak Co., where patent encroachment by Eastman Kodak of Polaroid’s “Moment camera innovation” was viewed as an instance of strict encroachment.

Convention of equality: It is otherwise called nonliteral encroachment. The encroachment is known as convention of equality when the part or gadget has same capability to get comparable or same outcomes. This encroachment furnishes a patentee with added and fair insurance for their licenses.

The teaching was taken on into the Indian general set of laws during a new Indian instance of Ravi Kamal Bali v. Kala Tech 8. In said case, it was claimed that the litigants encroached a patent on a carefully designed lock/seal for compartments. The safeguard was that the item varied in material specifics from the licensed item, however the court viewed the progressions as irrelevant and in this manner, applied the precept.

Backhanded encroachment is the point at which the encroachment has occurred, but the encroachment is worked with by another person. Aberrant encroachments are of two kinds:

Enlisted encroachment – where one effectively incites the other individual to encroach a patent by empowering, helping, supporting, instigating him/her to do as such. Patent encroachment by prompting regularly implies that the inducer energetically and purposely helped with the encroachment however could possibly have explicitly planned to disregard a patent encroachment.;

Contributory encroachment – where there is a purposeful support/help by one party in a demonstration of encroachment to the next party making them vicariously responsible for the demonstrations of the infringer.

It is a sort of backhanded encroachment, where an individual or enterprise is expected to take responsibility for encroachment regardless of whether they have not effectively partaken in encroaching exercises. Subsequently, it happens when a party sells an item which they know is utilized in the encroaching item. In regular cases, this item will have no business standing apart of its utilization in the encroaching item.

Contributory encroachment is set off when a merchant gives a section or part that, while not itself encroaching any patent, has a specific use as a component of another machine or structure that is covered by a patent.

Wilful Encroachment – One more kind of encroachment

This encroachment includes somebody showing a serious negligence for the presence of a patent. For instance, assuming you sued Summit for encroaching on your iron block patent and found during disclosure that they had it in their control and utilized it to make their iron blocks, you will probably win in showing that their infringement was wilful. Those viewed as at fault for wilful encroachment suffer higher consequences, lawyer expenses, and court costs.

Case Regulation – Symed Labs versus Glenmark Drugs

For this situation Symed Labs Ltd. had sued Glenmark Drugs Labs under the watchful eye of the Delhi High Court for purportedly encroaching two of its licenses – IN213062 and 213063. First patent was conceded for “Novel intermediates for Linezolid and related compounds” while the 213063 patent was conceded for “A clever interaction for the planning of Linezolid and related compounds”.

For the situation judgment announced on Jan 09, 2015, the adjudicator was persuaded that the offended party had great at first sight case for Symed. He further concluded that security to the patent cycles should be allowed to the offended party as harms won’t be a strong cure. There was a hopeless misfortune and injury in light of the long continuous utilization of licenses, and the equilibrium of comfort additionally lay for the offended party. Subsequently, the appointed authority conceded a transitory directive limiting Glenmark from assembling, selling, making available for purchase, promoting or straightforwardly or in a roundabout way managing in the development of Linezolid fabricated in a way to bring about encroachment of the offended party’s enrolled licenses.

End

Licensed innovation is a significant resource and should be secured. Patent encroachment is infringement of a patentee’s rights and various sorts of encroachments must be safeguarded in an unexpected way. At times it is basic to figure out the extension and significance of the cases in the patent, since those will lay out the security a creation gets under the law. On the off chance that the patent is undermined by encroachment, a viable guard will safeguard the property privileges and business activities. The encroachment items could be by the same token “any item to be utilized only for the delivering of the licensed item” or “crucial article for the goal of the issue by the innovation”. Thusly, a patentee should know about the kinds and safeguards of the encroachments.

REFERENCES

Leading International Instruments Concerning Intellectual Property Rights: A Comprehensive Legal Analysis

May 22, 2025

Competing Rationale of Legal Regimes for the Protection of Intellectual Property Rights

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