How To Deter Persons From Misusing Your Brand Name By Initiating Infringement Proceedings And Claiming Damages

The trademark is a type of Intellectual Property rights that imparts a unique identity to a product or service and thereby distinguishes it from others.So, protecting the trademark in this digital century has become all the way more important and challenging too.

The most common challenges that trademark owners face in case their brand name(or trademark) is misused is being pulled up into a long legal battle to get back what belongs to them. Such piracy or misuse not only impacts the reputation of the trademark owners but in some cases it also leads to closing down the business. Besides the losses,another challenge in most of the trademark infringement cases in India is  that the infringer just gets away with only a slap on his wrist, which the owner perceives to be a miscarriage of justice. It is due to this reason that most of the litigants either settle the matter outside court or are satisfied with a permanent injunction, as it is easier and cheaper to do so.

Although granting injunctions is the usual remedy, quite recently,Indian courts have started awarding both compensatory and punitive damages in case of trademark infringement as a means to not only compensate the trademark owner but also as a means of deterrent to persons looking to exploit a brand’s name to make easy money.

If the trademark owner establishes infringement, the courts these days, usually provide three kinds of damages listed below:

Compensatory damages: The main intention behind awarding compensatory damages is to put the party back to the original place where it would have been if the infringement did not take place. Damages only to the extent of actual injury suffered  is granted.Also, the total loss incurred by the plaintiff or the total gain acquired by the defendant has to be calculated and the onus to calculate and prove such loss is on the plaintiff.

Nominal damages:  Nominal damages are awarded to parties who have suffered loss from a wrongful conduct of trademark infringer but they cannot bring forward or put on record any proof of the loss suffered. The amount awarded is generally a small, symbolic sum.

Punitive damages: These are claimed over and above the actual damages or loss suffered by the plaintiff due to loss of goodwill and reputation earned with time, because of infringement by the second party. They are majorly prayed for when the intent of the defendant is willful, malicious and malafide.

The courts have gone on to state that “punitive damages should be really punitive in true sense and not just a flea bite” as it is not only the plaintiff who suffers but it also impacts the consumers,who purchase the wrong product thinking it to be of the plaintiff.

Now that the courts have taken a stricter approach to deter trademark infringement by awarding damages to the owner of the trademark, it is upon you to act swiftly to not only prevent such misuse but also be compensated for the harm that wrong use of your trademark by another person has caused.

To know more on how to claim the maximum damages in case of infringement of your trademark, visit our website or contact undersigned.

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