Copyright and Trademark Infringement

Meaning of Copyright and Registration:

The Copyright Act, 1957 (as amended by the Copyright Amendment Act 2012) is the governing law for copyright law in India. Copyright is a bunch of rights in certain creative works such as novels, paintings, music, computer programs, sound recordings and cinematograph films. To be copyrightable, the work must be more than just an idea; it must be fixed in a "tangible form of expression." This means that the work must be written, printed or recorded. 

Copyright owners have the exclusive rights to do or authorise the doing of any of the following in respect of a work:

• To reproduce the work,
• To distribute copies of the work,
• To perform or show the work to the public. 
• To make any translation or adaptation of the work

Copyright owners can prevent others from reproducing or communicating their work without their permission or may sell these rights to someone else. Acquisition of copyright is automatic and it does not require any formality but the certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law concerning dispute relating to ownership of copyright.

An application with complete details, copies of the work along with the requisite fee is filed before the Copyright office and a diary no. is issued to the applicant. After waiting for the mandatory period of 30 days for any objection that may be filed in the Copyright office against the concerned work, and depending on the feedback he gets the Registrar decides whether the work can be registered or not after giving both the parties an opportunity to put forth their case, in case he receives objections. When the objections, if any, are properly removed, a copyright registration certificate is issued by the Copyright office.

Infringement of Copyright:

Every day, artists and various owners develop new creative work with their ideas. However, once they get  copyright protection, they are the ones to get profit from their efforts. The original owner has sole authority either to sell his work or to license it to the third party, who can reproduce his work, but if someone duplicates or reproduces the work of the copyright holder without the latter's permission, then this can lead to copyright infringement. This means that the owner can take legal action against the infringer.

There are 2 types of remedies available to copyright owners viz:

• Civil Action: The owner can file proceedings under Section 55 of the Copyright Act, 1957 and get an injunction, in case his Copyright is infringed and also can be awarded damages.
• Criminal action: Under Section 63 of the Copyright Act, 1957, the copyright holder can initiate criminal proceedings and the punishment is at least six-month imprisonment, which may be extended to 3 years and with a fine of Rs. 50,000, extendable to 2 lakhs. A  police officer on the rank of sub-inspector can, under  Section 63 for the infringement of copyright committed, seize copies without a warrant to produce before the Magistrate.

Trademark

A trademark is a sign or an emblem that distinguishes the goods or services of one business from those of the other businesses. It indicates the source of the goods or acts as an emblem of the starting point of the goods. Therefore, it’s the main sign to identify the goods of a particular company. Nowadays, service marks, are also important as it identifies the provider of the service  e.g. Kesari travel, Cox and Kings etc. Under the Trademark Act, 1999 by Section 2 (zb) defines “trademark” as a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colours…” The Act also defines ‘mark’ under Section 2(m), which reckons it to incorporate a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.

The essence of a trademark mainly reckons that a trademark must be unique or idiosyncratic and should be very typical to the product it is associated with. If it lacks uniqueness or distinctiveness, the same can be rejected from being registered as a trademark. Graphical representation of the Mark is dealt with under Section 2(1) (k) of Trademark Rules, 2007 as a representation of a trademark for goods or services represented or capable of being represented in paper form and include representation in digitized form. This includes the shape, packaging, or colour combination of the mark. For  e.g., the emblems of various products, we use in electronics or electrical items. A well-known brand “Bajaj” is known for the representation and colour combination on all its electrical appliances, where it is embedded.

Infringement of Trademark

Trademark infringement can be classified as under:

1. Direct infringement: - Under section 29 this kind of violation of a trademark happens when the mark is used by an unauthorized user of the registered trademark. It has to be either identical to that of the registered trademark or even deceptively similar, thereby confusing a common consumer who ‘may’ be confused between the marks and think them to be identical. Also, it should be a registered trademark, with the trademark registry of India. On the contrary, for breach of an unregistered mark, the common law of passing off settles the disputes. In addition, the unauthorised use of the mark should be for the propagation of goods or services that fall under the same class of the registered trademark.

2. Indirect infringement There are two types of indirect infringement viz Vicarious liability, wherein under Section 114 of the Act, if a company commits an offence, then the whole company will be liable. The only exception is for a person who acted in good faith and without knowledge of the infringement. On the other hand, contributory infringement is when the person knows of the infringement, when a person materially contributes to the direct infringement or when a person induces the principal infringer to infringe. In the case of contributory infringement, there is no exception as there is no act in good faith.

Punishments for Trademark Infringement:

The infringement of a trademark in India is said to be a cognizable offence, which means that the infringer may also face criminal charges together with civil charges. A court may award the following remedies:

For Civil proceedings:

• Temporary/ Permanent injunction depending on the gravity of Infringement
• Damages and Accounts of Profits, so damages can be ascertained
• Destruction of goods using the infringing mark
• Cost of legal proceedings

For Criminal proceedings:

• Imprisonment can be for a period not less than six months extendable to three years;
• A fine that is not less than Rs 50,000 that may extend to Rs 2 lakh