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Home » Legal » Legal Notice Format For Trademark Infringement In India

Mohi

Mohi | Updated: Apr 09, 2020 | Category: Legal, Trademark

Legal Notice Format For Trademark Infringement In India

A legal notice is nothing but an initial stage from where a legal proceeding begins. It is for the people whose legal rights and duties or obligations have been abolished by some other party. It is a way of informing organizations and individuals about a matter by using a required method of the court of laws.

What is the Infringement of Trademark?

A Trademark owner has the right to use himself or assign others the use of his trademark. A registered trademark is deemed infringed by a person who, not being a registered proprietor or the registered user, uses in the course of his trade, a mark which is identical or deceptively similar in relation to the same goods or services in respect of which the trademark is registered. It is a violation of the exclusive rights that the person holds in relation to that trademark.

When does an Infringement of Trademark Occur?

In order to constitute infringement, the following requirements must be fulfilled:

  1. The person is not authorised to use the trademark; 
  2. The infringing trademark is either similar, identical or deceptively similar to the earlier registered trademark;
  3. The infringing trademark must be used during the course of a regular trade in which the registered proprietor or user is already engaged;
  4. The use of the infringing trademark must be printed or in the case of the usual representation of the mark in an advertisement. Mere oral use of a trademark is not considered infringement;
  5. Using either whole of the or an adopted one of the registered trademark by making a few addition and alteration.

Legal Remedies Available in case of Trademark Infringement

The Trademarks Act 1999 provides legal remedies in case of Trademark infringement. The remedies are of both Civil and Criminal nature. These include:-

  1. Granting injunction against the use of the mark by the court and appointment of a local commissioner for custody/sealing of infringing material and accounts;
  2. Handing over the accounts and profits;
  3. Awarding appropriate Damages;
  4. The order of injunction may include an ex-parte injunction or any interlocutory orders for any of the following matters –
    1. For the discovery of documents;
    2. Maintenance of infringing goods, documents or other evidence which are related to the subject matter of the suit;
    3. Restraining the defendant from disposing of or using his assets in a way that adversely affects the plaintiff’s ability to recover damages, costs, or other pecuniary remedies that may be awarded to the plaintiff.
  5. Criminal remedies include minimum imprisonment for six months and maximum of three years and fines ranging between 50,000 to two lakh rupees for falsifying and falsely applying for a trademark

When to send a legal notice for trademark infringement?

One can send Trademark Infringement Notice when anyone using someone else registered mark without permission or license. Unauthorized access of someone else trademarks in violation of the owner’s right if someone else is using an almost similar trademark, which is creating confusion in the market. 

Essentials of a Trademark Infringement Notice

These are the essentials of a Trademark Infringement Notice:

  • The first requirement is that name, address, and other details regarding the infringer should be mention in a Legal notice.
  • Detail of the Noticee is also required for sending a legal notice in the matter of Trademark Infringement.
  • Detail about the Trademark or Brand Name shall also be mentioned in the notice due to which course of action arose. 
  • Need all the details since when the infringement has taken place.
  • All the facts and grievances shall be mentioned in detail with proper dates.
  • How the owner of the registered trademark getting affected due to the infringement.
  • How infringement is affecting the business of the person
  • What is the further planning of the plaintiff for a future course of action?
  • Detail about all the previous communications made through the mail or phone, etc..
  • Legal Rights available to the owner of a registered trademark shall also be mentioned.
  • Need to give reasonable time to the Noticee for a reply, usually 15 days. 
  • The notice shall be sent by a lawyer on his letterhead, and a copy of the same shall retain as record with the lawyer or the owner of the trademark.

Advantages of Sending a Legal Notice

  • By sending a legal notice, the owner of the trademark clearly expresses his or her grievances against the Noticee. 
  • Through Legal Notice, few people came to know about the legal complications which may arise if they use someone else trademark. 
  • It questions the rightful owner of the registered trademark
  • It saves lots of time, which can be taken when a matter goes to the court.
  • By sending a legal notice in the matter of trademark infringement, unnecessary costs can also be saved.
  • Through Notice, Noticee came to know about the Infringer demands. 
  • The legal notice also clarifies the action which may be taken due to the non-fulfilling of conditions of the owner of a trademark whose right violated by the infringer. 
  • It gives a chance to Noticee to settle the matter amicably.  
  • It’s always better to settle the matter peacefully to avoid complicated procedures of court.

Conclusion

It is always advisable to send a legal notice first in the matter of trademark infringement to avoid hassles of the court. There are few circumstances where trademark infringement won’t be considered as infringement if the registered trademark is used by a person who has acquired it through assignment or if a person is using for some other goods or services.

Trademark Infringement Notice Format

To,                                                                                           Date:

Noticee Name

Address 

Phone number

SUBJECT: “Legal Notice for Infringement/Passing off our Trademark by using our Brand Name “(Brand Name)” and cheating consumers by using our trademark

Under instructions from and on behalf of our client named, (name of company or person whose legal right violated),  having registered office at (Address), without foregoing and without prejudice to the legal rights and remedies available to our client, we hereby issue and serve upon you, the aforesaid Noticee the following Legal Notice for the cause stated as under:

1. That our client is a Private Limited Company incorporated under the Companies Act,1956. Our client is one of the prominent company which has established its name with utmost hard work and perfection and has attained a high degree of reputation and goodwill in the business by helping its business to grow and to take the venture to the next level.

2. Our client carries on business of Restaurants under the Trade Mark “ Brand Name” with Device under Class 43 and the said Trade Mark has been advertised in the Newspapers and particularly in the Trade Marks Journal no……… and the application number is …………….

3. That our client has been using this trademark since (Date)and the same has been renewed till 24/11/2026. Our client has been using the said Trade Mark “Brand Name” since 2006, which has acquired a distinctive feature in respect of the services of our client by such continued and extensive use of the said Trade Mark. The high standard of the performance of the “ Brand Name ” restaurants has come to be exclusively associated in the minds of the public with our client’s brand.

4. That our client is a big brand and known for providing good quality of food or services under the Trademark ” Brand Name ” and established a good reputation in the field of Restaurants and due to high demand and fame, Now there are many Franchisee ventures of ” Brand Name” in Pune and Ahmedabad, and it also runs ” Brand Name” restaurant in Noida

5. It has come to our client’s knowledge that you have been providing restaurant services under our Mark “Brand Name” with intention to cheat consumers by using their trademark/brand. That you, the Noticee is registered with Zomato with the name “Brand Name”, which is infringement of our client’s trademark and the same is a punishable offence.

6. That our client has been using this mark for more than 13 years, and the same is protected under the Trademark Act,1999. You were aware of our client’s brand and in spite of such knowledge you the noticee has been using our client’s brand and Trade Mark for providing Restuarant Services with the mala fide intention to trade over our client’s goodwill and reputation which our client has built up by spending huge amounts.

8. That you, the Noticee is trying to take advantage of our client’s goodwill and reputation in the market for your business, which is an offence not only towards our client; in fact, you are misleading consumers also. 

8. That you the Noticee is very well aware of this act and you, the noticee is misusing our client’s mark for your restaurant service with the intention to confuse consumers for wrongful gain to you. You, the Noticee have made yourself liable to legal proceedings for both Civil and Criminal under the Trademark Act,1999.

9. That you, the Noticee is cheating innocent Consumers also by using our client’s mark by giving the impression of our brand and the same is prohibited and punishable under the Consumer Protection Act, and our client’s reputation in the market is also at stake due to misuse of our client’s mark by you the noticee.

12. That you will immediately de-register / stop your restaurant services in our Client’s Trademark  from Zomato website and send the confirmation of this to my email id mentioned in this notice.

14. In the event the aforesaid requirements of our client pertaining to written apology and refund are not fulfilled within 15 days of the receipt of this notice, we will be left with no other option but to initiate legal proceedings both civil and criminal

15. That you, the Noticee is further called upon to pay our client an amount of Rs. 15000/- (Rs. Fifteen Thousand Only) towards the cost of this notice. Further, you, the Noticee shall ignore this notice at your own peril and cost.

16. Please further note that this notice is without prejudice to the right of our client to initiate any other legal proceeding before the court of law to get justice for the same.

COPY RETAINED

Yours Sincerely,

(Advocate Signature)

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Mohi

Mohi

Advocate Mohi Kumari has got 9+ years of experience in practicing law independently all over India. She has completed her Master in Laws from Rajiv Gandhi National University Of law, as well she has done Post Graduate diploma in Cyber Laws from Asian School of Cyber Laws and Diploma in Corporate Laws from Bharati Vidyapeeth Deemed University.


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