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Language: en-IN

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a very warm welcome in module 3 of week six
of the course intellectual property disputes

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code practices and enforcement now this week fully
dedicated to trademark we have already dealt with

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trademark definition type statutory framework
registration the process infringement passing

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off okay then we have gone into the details of
trademark infringement and then we have seen

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that dilution cyber squatting counterfeiting so
yeah we we have like received lot of information

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regarding the trademark issue isues the disputes
which probably will arise a few more so there is

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a one more we can say I I should add it into
the this particular the list that is a

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protection against the unjustified threat so you
can just check here that unjustified threats

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you know that unnecessary somebody is like a
we can say that they are using a means to

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torture in one sense it is a torture so it's like
a sometimes what what happens that somebody

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unnecessarily threats the trademark owner without
any reason and if that kind of a threatening is

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there then section 142 of a trademark act so that
particular take care of this if someone threatens

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legal action for trademark infringement this
party can file a civil suit seeking a declaration

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that such threats are unjustified so
that Arrangement is there so unnecessary

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if somebody is like a u like threatening about
that legal action about the infringement

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section 142 of a trademark act will be of a great
help so here there there is a possibility of

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injunction to stop this threats and a claim
damages also for any losses incurred there

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is a mental harassment here so that losses
also the damages also can be claimed in such

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situation and there will be the like reest
that injunction to stop that threats is also

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possible okay so this is a situation huh so you
can just explore this particular for the

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unnecessary if somebody is a threatening for the
legal in that infringement of a trademark so let

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us move further now that you can just check
here now the jurisdiction so we understood okay

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that there is a infringement there may be dilution
there may be like a cyber squatting may be there

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unjustified threats might be there right so
any of that kind of issues may be there be around

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that particular Trad Mark right counterfeiting
another important we can say and majorly like

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observed like observ observed dispute is there
considering the trademark now okay if any of this

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unfortunate event happen with this particular
trademark what exactly where exactly you have to

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you have to approach so jurisdiction is there so
when we are talking about a jurisdiction three

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primary factors we have to take into consideration
for determining jurisdiction one is a territorial

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jurisdiction so the place where exactly the
incidents happen considering that the jurisdiction

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is a determine and it can be initiated any of the
district or high court as a ordinary original

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civil jurisdiction and that that any suit
you should not go below the dis district court so

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District Court is a sign starting point you can
say in case of a trademark you can the the court

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is like a district court from where you can just
District Court then high court and Supreme Court

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this will be the hierarchy in that particular
situation then there is a picary jurisdiction so

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monetary value of that lawsuit also influences the
selection of the appropriate code and therefore

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if higher monitary obviously the higher courts
you have to file a case in the higher courts

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okay so here district court and higher that high
court these are the two options so you you have to

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determine B based on that monetary value next
is like a subject matter of a jurisdiction so

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that is again the important so matter pertaining
to that trademark infringement or a passing

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of obviously you can go for the Civil
jurisdiction so that option is there but

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you can say that there are civil and criminal both
kind of options are there so you are choosing with

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civil remedies or a criminal remedies so that you
have to determine okay and accordingly you have to

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initiate the action okay now next like next is
like a after jurisdiction you have to focus on the

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remedies against that tradmark infragement
now remedies are given in section 29 of a

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trademark act which addresses that trademark
infringement related issues so you can have a

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civil remedy you can have a criminal remedy and
then the administrative remedies are there so

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here the owners lies on the plenti to maybe Civil
criminal or the administrator but owners lies with

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the plenti to demonstrate their exclusive right
on the trademark so plenti have a burden of roof

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we can say with the plenti it is okay now they
must establish a reasonable reputation associated

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with trademark because trademark is for that your
building up that Mark mean especially when case of

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a passing off you have to give that establish
that reasonable reputation is associated with

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the trademark and the likelihood of a confusion
we have already discussed that primary test that

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how court is like examine any case likelihood
of a consumer cons Confusion by a consumer so

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that is a main we can say the primary test you can
say in a trademark related infringement it is it

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is followed okay and obviously burden of proof is
with a plenti only to prove that yes he or she or

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or that entity have established that Goodwill with
the trademark and they have to prove that thing

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okay so that is the situation so the central to
the court assessment is the degree of similarity

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between the conflicting Mark the mark of a plenti
and Mark of the defendant okay who have infringed

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that Mark so Court will check into the similarity
and they while checking that similarity they will

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check that whether there will be a Confusion
by the consumer so that that will be the test

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now additionally obviously Court will look into
the defendant's intent that is very important

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okay so what with what intention probability
defendant have use this particular trademark

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it's a intentional whether it is like to get
the share in the market or it is a ignorant use

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so that will be tested in the Cod next is like
whether there is any advertising effort by the

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defendant by using that particular tradmark
that that the original creators tradmark

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so whether that intention is there so that for
initial stages they will use that establish and

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then they will like once they they got that
established business they can go especially

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when you see the Sardar bu and Starbucks using
that Starbucks trademark this Sardar buak we

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can say the coffee shop you can say they have
established very well okay this is happened

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even in many case of a patent this happens that
patent is really not granted but only the patent

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is filed considering that the further you can say
the fundraising or other activities can be done

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and this is the situation actually so sometimes
in trademark also this will happen sometimes

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what many times it happens that initially the
established trademark is used it will be act as

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advertising and then you will establish and then
it doesn't matter okay so that kind of a situation

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is there consumer purchasing behavior is again
taken into consideration that how consumer

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like select the particular product if whatever
the product under consideration is there how the

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consumer approaches towards that that buying
how exactly the process is followed obviously that

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is also tested when we are talking about the
that how the examination is done in the code

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so first that you obviously the that plenty
fill establish yes it is a distinctive it has

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a reputation so plenti have that that have to
plenti has to prove that and then defendant intent

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advertising effort or consumer purchasing behavor
all these factors will be taken into consideration

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by the court okay so now what we will do here
we will just watch one video regarding this

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trademark enforcement and then then we will move
further to the Civil remedies okay India are being

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directed to the US firm as consumers are assuming
that these are associated with Tesla Inc the high

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court issued a notice to Tesla power in response
to Tesla's plea and restrained the company from

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publishing any promotional advertisement featuring
EV products with a similar Tesla trademark up

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until 22nd of May the next date for hearing it
is as interesting as it gets there are two Teslas

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here one of course is the car maker and other
is Tesla power based in India and imagine the

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linkages you know because if you're advertising
a battery under the the brand name of Tesla the

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The Logical assumption would be that it is the
Tesla us electric vehicles manufacturer and it is

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selling perhaps batteries which go into electric
vehicles but that is not the case and of course

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you know the matter is subus now so it'll be
incorrect to comment on it but okay now

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you can just check here civil remedies when we are
talking about so various like injective reliefs

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are there and then financial compensation so when
we are talking about a similar remedies mainly you

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can say the focus will be around this now what
kind of injunctions will be there or what kind

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of a financial compensations or financial remedies
you can say here so one is like a permanent or a

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per Perpetual injunction is there interlocutory
or temporary or ad interim injunction is there

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Marvia injunction is there then there are certain
orders like Anton pillar order johu order you can

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just check here accounts of profits or damages
delivery and restriction so that is another

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one but there are certain challenges also when
we are talking about a financial like remedies

00:11:05.320 --> 00:11:09.760
when you are seeking some challenges are there
so we will go into the details of that now when

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we are talking about this permanent or Perpetual
injection what exactly so this type of injection

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as a name suggest it is granted based on the
nature of the case and it remains in effect

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permanently providing a lasting remedy to the
plenti once that injunction order is received

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it is like a permanent so there is no issue now
that permanently there is a injunction the the

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defendant will not able to use that trademark
anytime again okay so per Perpetual word is

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again important because trademark is a after
every 10 years it will be renewed so you need

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not to worry the plenti need not to wor worry
because it is a permanent injunction is there

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next is a temporary or add inrim injunction is
there now in this situation what happens for a

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specific period typically until the court issues
the final judgment injunction order is given okay

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so it is is like a temporary Arrangement actually
and for a specific period until that final you can

00:12:04.080 --> 00:12:10.600
say the Judgment this particular interlocutory
or temporary or ad injunction is ordered and

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it is a temporary measure we can say though
immediately the stopping of that infringement

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activity this is a good remedy so that the if it
is a counterfeit product or if it is like a any

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dilution happen because of the that blurring
or like the tampering is done so all this

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things activities will be stopped by the defendant
because of this next is a Marvia like injunction

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so what is that Maria injection actually so this
interim injunction pre prevents the defendant from

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disposing of the assets until a final judgment
so in this mariva injunction what happens that

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sometimes what happens if the case is initiated
restriction of the like proofs huh that

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is one solution so here what happens if Maria
injunction is Mara in is that the it is again

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interim injunction so defendant cannot dispose
of the assets so until that final judgment so

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the proof that particular that product which is
counterfeit product or it may be like a the the

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the any of the activity of infringement activity
is done in any of the form so the product will be

00:13:23.160 --> 00:13:28.840
like till that final judgment there will be no
disposal of that so that is very important Okay

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so it ensures that sufficient funds or assets
are available to satisfy any potential judgment

00:13:34.880 --> 00:13:43.680
in favor so many times what happens that
the it's very common that if any that

00:13:43.680 --> 00:13:52.680
issue comes and then the if the damages or the
compensation calculation if goes at a certain

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level and probably defendant is aware about that
this particular situation then they will like

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try to escape from the situation from that country
also sometimes so they try to escape from that

00:14:05.720 --> 00:14:13.560
situation and if that kind of a situation they
cannot like like dispose of any of the assets

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along with that whatever the that manufacturing
units are there so everything they have to they

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will not touch anything they will not do anything
with that particular asset so that if compensation

00:14:24.160 --> 00:14:29.040
is there that can be recovered easily so that
is very important when we are talking about

00:14:29.600 --> 00:14:35.360
Maran injunction next is the Anon pillar order so
in this Anton pillar order what happens it allows

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the penp to search the defendants premises it is
very important that many times defendant will like

00:14:41.320 --> 00:14:49.840
deny that any of the activity so here to get entry
into the that premise of that is obviously the

00:14:49.840 --> 00:14:56.560
defendant premise you have to inspect that you
have to in inspect the documents invoices some

00:14:56.560 --> 00:15:03.600
office like the the the the books huh account
books and all so if you want to do that obviously

00:15:03.600 --> 00:15:08.400
what happens you can get the Anton pillar order
and you can enter into the premise and you can

00:15:08.400 --> 00:15:14.160
do the search next is a jnu order actually this
order authorizes the searches and Caesar against

00:15:14.160 --> 00:15:20.240
the unand identified defendant allowing the plenti
to take the action against parties involved in the

00:15:20.240 --> 00:15:25.920
infringement mainly this kind of a situation is
like a in copyright it is mainly used many times

00:15:25.920 --> 00:15:31.680
that John do order but here also you can
just say that Anonymous the part is anonymous

00:15:31.680 --> 00:15:37.040
but that order is in your hand so that you can
anytime do the search and Cesar activity against

00:15:37.040 --> 00:15:43.920
any infringement so that is again important so
you need not to initiate that particular in hand

00:15:43.920 --> 00:15:50.320
you have one so if any information you received
about the infringement you need not you you have

00:15:50.320 --> 00:15:57.000
that order in your hand it is anonymous so it is
against anybody so you can directly start the

00:15:57.000 --> 00:16:03.040
search and you can do the C dirity obviously
the police you are taking help and sub

00:16:03.040 --> 00:16:10.000
inspector level above that is the authority who
can be of help in such kind of a situations okay

00:16:10.000 --> 00:16:15.880
so John do order is there next is account of
profits or damages so the defendant Financial

00:16:15.880 --> 00:16:21.880
records are examined to determine the profits
generated during the infringement period and the

00:16:21.880 --> 00:16:28.200
plenti may be entitled to claim that portion of
these profits as a damages so account of profits

00:16:28.200 --> 00:16:35.320
and that will be claimed as damages by the by the
plenti so that that that is Arrangement is there

00:16:35.320 --> 00:16:40.360
then delivery and destruction so in this case what
happens that infringing boots or materials are

00:16:40.360 --> 00:16:46.560
identified and they are surrendered to the plenti
for a destruction and that will be removed from

00:16:46.560 --> 00:16:53.800
the market so many times if a the the quality
of offering or the the product which is like a

00:16:53.800 --> 00:16:58.440
counterfeit product is there so what happens
sometimes the quality whatever the original

00:16:58.440 --> 00:17:04.240
product is there that quality may not be may not
be followed obviously it will not be followed so

00:17:04.240 --> 00:17:10.640
in that situation what will happen that infringing
Goods or materials are like custody of that is

00:17:10.640 --> 00:17:15.760
taken and that will be destroyed actually so
destruction is a and so that in Market there

00:17:15.760 --> 00:17:23.560
will not be any hampering of the Goodwill of that
particular trademark because the the quality which

00:17:23.560 --> 00:17:30.720
is like Assurance of that particular trademark may
get affected if a substandard material is entering

00:17:30.720 --> 00:17:36.160
entered into the market so here delivery and
restriction is but there are certain challenges

00:17:36.160 --> 00:17:41.040
although we are saying that these particular kind
of a situations are there good arrangement is

00:17:41.040 --> 00:17:46.520
there Act is very good so we have that different
kind of injunctions are there different kinds of

00:17:46.520 --> 00:17:51.600
orders are there different kinds of Damages
you are claiming you are districting the that

00:17:51.600 --> 00:17:56.440
counterfeit product you are able to do that but
challenges like that implementation of the order

00:17:56.440 --> 00:18:03.280
of a judgment is again the important that suppose
you have received that like judgment that in

00:18:03.280 --> 00:18:09.440
your favor and in civil remedies it is like a
you have received damages of x amount or you

00:18:09.440 --> 00:18:15.880
have received the like that injunction order
generally okay they may follow but still you

00:18:15.880 --> 00:18:21.800
have to make sure that yes it is whether really
enforced so enforcement of your that judgment

00:18:21.800 --> 00:18:27.320
is again very important okay so therefore Court
practices and then the enforcement actually very

00:18:27.320 --> 00:18:33.960
important your court decision is in your hand but
enforcement of that decision and enforcement of

00:18:33.960 --> 00:18:40.360
that judgment is again the challenge okay so you
have to follow for that even you just see simple

00:18:40.360 --> 00:18:46.800
example if I have to give you alumni which is
offered in the or it is decided in the family law

00:18:46.800 --> 00:18:53.800
cases that also you many times you have to visit
in many cases you have to visit again the code for

00:18:53.800 --> 00:19:00.400
the that enforcement of that particular receipt
of that alimony so similarly here Court will say

00:19:00.400 --> 00:19:06.760
that this 420 cores damages are there or 220 cores
damages are there we never know whatever it may

00:19:06.760 --> 00:19:12.880
be depending on the situation but getting that
220 cres or that amount is again the challenging

00:19:12.880 --> 00:19:18.960
situation is there probably you have to go again
for the court for implementation of that order so

00:19:18.960 --> 00:19:24.680
that these challenges are definitely there so but
these are the remedies so we we got idea fair fair

00:19:24.680 --> 00:19:30.240
idea about the what are the issues mainly with
a treadmark and the these are the simil remedies

00:19:30.240 --> 00:19:35.920
which are there which you can follow and you can
get the relief that is a remedy civil remedies

00:19:35.920 --> 00:19:42.840
are there and you can get the damages or you can
get you can stop the activity of that infringer

00:19:42.840 --> 00:19:49.640
so this is the situation so we are coming towards
the end so the question is like that the quiz quiz

00:19:49.640 --> 00:19:56.920
here so you can just see that any of the like
enforcement case I'm talking about enforcement

00:19:56.920 --> 00:20:01.720
infringement case probably you are aw about that
infringement happened and all that thing now in

00:20:01.720 --> 00:20:07.440
the infringement the decision is given by the
court about x amount of a damages will be like

00:20:07.440 --> 00:20:14.680
a should be received by the plenti so if you
have came across any of that enforcement case and

00:20:14.680 --> 00:20:21.320
whether it is really enforced the Judgment which
is given whether that is enforced just check that

00:20:21.320 --> 00:20:26.720
particular thing and maybe you can write down in
the comment box okay so with this we are coming to

00:20:26.720 --> 00:20:32.680
the end of this session that is the enforcement
of a trademarks right the first part we are

00:20:32.680 --> 00:20:37.720
finish we are finishing here then in the second
session we will focus on the criminal remedies

00:20:37.720 --> 00:20:47.320
or the administrative remedies which are there in
case of a trademark and management okay thank you