In the digital age, where knowledge is readily available and easily shared, safeguarding our intellectual property has never been more crucial.

Breaching someone’s copyright or trademark can lead to severe consequences for both businesses and individuals, including legal battles, financial losses, and damage to reputations.

To safeguard your creative works and avoid inadvertently violating someone else’s rights, it is essential to comprehend the basics of copyright and trademark law.

Whether it’s the music we listen to, the products we purchase, or the content we share online, copyright and trademark infringement can affect all aspects of our lives.

In this blog, we will delve into the world of copyright and trademark infringement, exploring its significance, impact, and how you can protect yourself in today’s complex legal landscape.

Copyright: Protecting Your Creative Works

Copyright is a form of legal protection that gives creators the exclusive right to control how their original works are used, distributed, and reproduced.

Copyright laws vary by country, but in general, copyright protection is automatic once a work is created and fixed in a tangible form, such as in writing, on film or video, or as a digital file.

Copyright law protects a wide range of creative works, including:

• Literary works, such as books, articles, and poems
• Musical compositions, including lyrics and sheet music
• Dramatic works, such as plays and screenplays
• Art forms, such as paintings, sculptures, and photographs
• Films, videos, and other audiovisual works
• Sound recordings and musical performances
• Architectural designs and drawings
• Software code and computer programs

These works are protected from unauthorised use, reproduction, distribution, or creation of derivative works by others without the permission of the copyright owner.

Copyright protection gives creators the right to control how their works are used, and allows them to earn income from their creative efforts.

It’s important to note that copyright protection is not unlimited.

There are certain exceptions to copyright, such as fair use, which allows for limited use of copyrighted materials for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research.

Additionally, copyright protection usually expires after a certain amount of time, which varies depending on the country and type of work.

Copyright Infringement

This includes copying, distributing, or modifying the work, whether for profit or not.

Types of Infringement

There are two main types of copyright infringement: direct and indirect infringement.

Direct Infringement

Direct infringement involves someone actually copying, distributing, or using copyrighted material without authorisation.

This can happen in various ways, such as downloading a copyrighted movie or sharing copyrighted music online.

Indirect Infringement

Indirect infringement occurs when someone contributes to, facilitates, or benefits from the infringement committed by another person.

Examples include providing a platform for sharing copyrighted material or knowingly linking to infringing content.

When Will It Not Be Considered A Copyright Infringement?

There are several circumstances when using another party’s copyrighted work will not be considered an infringement of copyright.

These situations often involve “fair use” or other legally permissible activities. Some of these circumstances include:

Fair Use

Fair use is a legal doctrine that permits the limited use of copyrighted material without obtaining permission from the copyright holder.

Factors to determine fair use include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market for or value of the copyrighted work.

Examples of fair use include criticism, comment, news reporting, teaching, scholarship, and research.

Public Domain

If a copyrighted work has entered the public domain, it is no longer protected by copyright law and can be used freely.

Works enter the public domain when their copyright term expires or if the copyright owner explicitly dedicates the work to the public domain.

Creative Commons Licenses

Some copyright owners choose to license their works under Creative Commons licenses, which allow others to use the works under specific conditions without seeking permission. The exact terms of the license dictate the allowed uses.

Statutory Exemptions

Certain uses of copyrighted works are exempt from copyright infringement under specific statutes.

For example, educational institutions and libraries may have special exemptions for using copyrighted works in teaching and research activities.

Compulsory Licenses

In some cases, copyright law allows for compulsory licensing, where a user can obtain a license to use a copyrighted work without the copyright owner’s permission, usually by paying a predetermined fee.

This is common in the music industry, where a compulsory license allows artists to record and distribute cover versions of songs.

De Minimis Use

De minimis use refers to a trivial or minimal use of copyrighted material that a court may consider too insignificant to constitute infringement. However, this concept is highly subjective and varies on a case-by-case basis.

It is essential to remember that the specific rules and exceptions for copyright infringement vary by jurisdiction.

It is always advisable to take legal advice from an intellectual property attorney to ensure that your use of a copyrighted work falls within a legally permissible category and does not infringe on the rights of the copyright owner.

Trademark: Protecting Your Brand Identity

Trademark law is designed to prevent confusion in the marketplace by ensuring that consumers can identify and distinguish the source of the products or services they are purchasing.

A trademark can be a word, phrase, symbol, design, or combination thereof. It can also include sounds, scents, and even a combination of colours in some cases.

A trademark owner has the exclusive right to use their trademark in connection with their goods or services and can prevent others from using a similar mark that might confuse consumers.

Here are some examples of the different types of trademarks:

• Word Marks: This includes words or phrases that are used to identify a product or service, such as “Nike” or “Just Do It.”
• Device Marks: This includes logos or designs that are used to identify a product or service, such as the Apple logo or the McDonald’s golden arches.
• Collective Marks: This includes a trademark that is used by members of a collective group or organisation to identify their goods or services, such as the “Fair Trade Certified” label.
• Service Marks: This includes a trademark that is used to identify and distinguish services from others, such as the “Uber” or “Airbnb” logos.
• Certification Mark: This includes a mark that certifies that goods or services meet certain standards or quality requirements, such as the “USDA Organic” label.
• Series Trademarks: This includes a trademark that is used to protect a series of related marks for the same goods or services, such as the different models of the iPhone, which are all trademarked.
• Well-Known Marks: This includes a trademark that is widely recognised by the general public and has a strong reputation, such as “Coca-Cola” or “Google.”
• Color Trademarks: This includes a trademark that is defined by a specific color or combination of colors, such as Tiffany & Co. blue or UPS brown.
• Sound Marks: This includes a trademark that is defined by a specific sound or musical jingle, such as the MGM lion’s roar or the Intel chime.

Trademark protection is important for businesses, as it helps to establish brand recognition and loyalty.

It allows companies to protect their reputation and ensure that their customers can easily identify their products or services in the marketplace.

Trademark Infringement

Trademark infringement involves the unauthorised use of a trademark that is likely to cause confusion, mistake, or deception as to the origin, sponsorship, or approval of goods or services.

This can harm both the trademark owner and consumers who may be misled about the quality or source of the goods or services.

Types of Infringement

Like copyright infringement, trademark infringement can be classified into direct and indirect infringement.

Direct Infringement

Direct infringement occurs when someone uses a trademark that is identical or confusingly similar to an existing trademark, leading to consumer confusion.

This includes using the mark on products or services, advertising, or domain names.

Indirect Infringement

Indirect infringement, also known as contributory infringement, involves assisting or encouraging someone else to infringe on a trademark.

This can include manufacturing counterfeit products, providing a platform for selling counterfeit goods, or knowingly promoting infringing products.

Brand Copyright Infringement

Brand copyright infringement is a term that combines elements of both copyright and trademark infringement.

However, it is important to clarify that brands typically fall under trademark protection rather than copyright protection.

Copyright protects original works of authorship, such as literary, musical, and artistic works, while trademarks protect words, phrases, symbols, or designs that identify and distinguish the source of goods or services.

When people refer to “brand copyright infringement,” they usually mean unauthorised use of a brand’s unique elements, such as logos, slogans, or distinctive packaging designs, which are protected by trademark law.

In this context, brand copyright infringement actually refers to brand trademark infringement.

Brand trademark infringement occurs when a third party uses a brand’s trademark, or a confusingly similar mark, without authorisation, in a way that is likely to cause confusion, mistake, or deception among consumers regarding the source of the goods or services.

This can harm the brand owner’s reputation, diminish the value of their trademark, and mislead consumers about the quality or origin of the products or services being offered.

To combat brand trademark infringement, brand owners can take legal action against infringers, seeking remedies such as injunctions, damages, and impoundment and destruction of infringing materials.

In more severe cases, criminal charges may also be applicable, leading to fines, imprisonment, or both.

Is There Any Overlap between These Two Infringements?

Overlap examples:

Logos: A logo can be protected by both copyright and trademark law.

Copyright protects the artistic expression of the logo (e.g., the design, colors, and arrangement), while trademark protection safeguards the logo’s use as an identifier for a brand’s goods or services.

Infringing on a copyrighted and trademarked logo could result in both copyright and trademark infringement claims.

Characters and Mascots: Characters and mascots used in advertising or as part of a brand’s identity can be protected under both copyright and trademark law.

Copyright would protect the character’s visual appearance and any associated stories, while trademark protection would cover the character’s use as a symbol of the brand or product.

Unauthorised use of such characters could lead to claims under both copyright and trademark law.

Packaging and Product Designs: Unique packaging and product designs can be protected under both copyright and trademark law.

Copyright would protect the creative elements of the design, while trademark law would protect the design’s ability to identify and distinguish the source of the goods.

Unauthorised use of these designs could result in both copyright and trademark infringement claims.

This can simply be understood with the help of the following example:

Let’s say there is a popular children’s book series called “The Magic Garden” that is owned by a publishing company called ABC Books.

The series features unique illustrations and characters that are protected by copyright law.

Now, let’s say that another company, XYZ Toys, creates a line of toys featuring characters and illustrations that are very similar to those in “The Magic Garden” book series.

The toy packaging also includes the phrase “Magical Garden” prominently displayed on the box.

The phrase “Magical Garden” is similar to “The Magic Garden” series name and is likely to cause confusion in the minds of consumers.

In this scenario, the use of similar illustrations and characters by XYZ Toys may constitute copyright infringement since they are using ABC Books’ copyrighted material without permission.

Additionally, the use of the phrase “Magical Garden” may also be considered trademark infringement since it is similar to the trademarked name “The Magic Garden,” which is owned by ABC Books.

It is essential to understand the difference between copyright and trademark protection and be aware of the potential overlap to avoid intellectual property violations.

In cases where there is an overlap, it is crucial to obtain the necessary permissions or licenses from the respective copyright and trademark owners before using the protected material.

When Will It Not Be Considered A Trademark Infringement?

Section 30 of the Trademarks Act of 1999 outlines specific requirements that must be met in order to rule out trademark infringement.

The alleged infringer may raise the conditions outlined in Section 30 as a defense. Some of these conditions are as follows:

• Whenever a registered trademark is being used in a legitimate manner in a business or industrial setting.
• When using a registered trademark does not attempt to obtain an unfair advantage or otherwise show that using the brand is harming its reputation or distinctive qualities.
• Users cannot be accused of trademark infringement when they continue to use a brand with permission from the registered trademark’s original owner, who has not revoked such license in such circumstances.
• It is not possible to consider the use of a trademark to be infringing when it falls within the parameters of the restrictions and requirements established when the originally registered trademark was registered with the Registry.

Criminal Prosecution Cases Involving Violations of Copyright and Trademarks

Copyright Violation Case

Girish Gandhi, Etc. v. Union of India and Anr.

One of India’s most significant criminal legislation or case laws in the area of criminalising copyright infringement may be found in this case, which resulted from a civil writ petition.

Even though Girish Gandhi claimed to have obtained authentic copyrights for each movie in his video cassette business and to have the necessary supporting documentation, he said that “he anticipates the unwarranted use of section 64(1) against him.”

Despite the fact that no measure was taken against him, he stated that Section 64(1) gave the police extra comprehensive powers, making him always fearful of police harassment and pointless legal action. He, therefore, asked for the allegation in the article to be ruled extra-vires.

The petition was turned down on the basis that no overt conduct had been committed in connection with the allegation and that Section 64(2) of the conduct offered suggestions for “satisfaction means” in the case of an improper or arbitrary seizure.

Due to the court’s thorough explanation of the Act’s guidelines and proof that it is not arbitrary, perhaps notwithstanding the presence of police officers, this case created a precedent.

Maharashtra State v. Juhu Jagruti Trust and Others

In this case that made waves in the legal community, the court highlighted the importance of Section 482 of the Criminal Procedure Code in cases involving copyright violations.

Essentially, the case involved a situation where the petitioner had played a song without obtaining permission, and the respondent had filed a criminal complaint against them, even after the petitioner had apologised.

After the court assumed jurisdiction over the situation, the petitioner invoked a Criminal Procedure Code provision that is annexed to the Copyright Act to have the FIR dismissed.

Nippon Steel & Sumitomo Metal Corporation vs. Kishor D Jain and Another: Trademark Violation Case

In this case, NMC accused KDJ of selling fake iron pipes that resembled their products. The issue was brought to light when Yanbu Steel Company in Saudi Arabia filed a complaint seeking a restraining order against KDJ.

Yanbu Steel received fake certifications from KDJ that bore NMC’s logo and trademark while claiming to have been sent by NMC.

An ex-parte ad interim injunction barring KDJ from violating the registered trademarks of the NMC was issued by the Noble Court.

Receivers were assigned to go to KDJ’s site and seize further counterfeit goods, such as electronic recordings that were identical to NMC and pipes without labels.

Due to their inherent qualities, using NMC’s products requires a high level of quality control.

The Honourable Court noticed a detrimental effect on NMC and India’s goodwill and reputation.

Justice SJ Kathawalla granted five crores of Rupees in expenses to Mumbai’s Tata Memorial Hospital, a famous cancer treatment and research facility, at NMC’s request. KDJ was compelled to pay these charges.

How to Protect Your Work From Both These Infringements?

Protecting your work from both copyright and trademark infringement is essential to safeguard your intellectual property rights.

Here are some steps you can take to protect your work from infringement:

Copyright Protection:

1. Understand your rights: Familiarise yourself with copyright laws in your jurisdiction to understand your rights as a copyright owner. In many countries, copyright protection is automatic upon the creation of an original work, without the need for registration.
2. Mark your work: Use a copyright notice (e.g., “© [Year] [Your Name]. All rights reserved.”) on your work to inform others that it is protected by copyright.
3. Register your work: While not required in many jurisdictions, registering your copyright with a relevant government agency can provide additional legal benefits, such as the ability to seek statutory damages and attorney’s fees in an infringement lawsuit.
4. Monitor for infringement: Keep an eye on potential violations by regularly searching the internet for unauthorised uses of your work. Set up Google Alerts for specific phrases or titles related to your work to track potential infringements.
5. Enforce your rights: If you discover infringement, take appropriate action. This can include sending a cease and desist letter, filing a takedown notice of copyright infringement if the violation occurs online, or pursuing legal action if necessary.

Trademark Protection:

1. Choose a strong, unique mark: Create a distinctive trademark that can be easily identified and distinguished from other marks in your industry.
2. Conduct a trademark search: Before using a trademark, conduct a search to ensure it is not already in use by another party. This can help avoid potential infringement claims against you.
3. Register your trademark: Register your trademark with the appropriate government agency in your jurisdiction. Registration provides legal benefits, such as the exclusive right to use the mark and the ability to enforce your rights against infringers.
4. Use your mark consistently: Apply your trademark consistently across your products, services, and marketing materials to establish and maintain your brand identity.
5. Monitor for infringement: Regularly monitor the marketplace and the internet for unauthorised use of your trademark or confusingly similar marks. You can use specialised monitoring services or conduct searches yourself.
6. Enforce your rights: If you discover a violation, take appropriate action. This can include sending a cease and desist letter, or send a notice of trademark infringement to the email address of the infringer, or pursuing legal action if necessary.

By following these steps, you can protect your work from both copyright and trademark infringement, ensuring that your intellectual property rights are secure and respected.

How to Avoid Both Infringements?

To avoid both copyright and trademark infringement, you should follow these best practices:

Avoiding Copyright Infringement:

1. Create original content: Develop your own unique content instead of copying or repurposing someone else’s work. If you need to use a copyrighted work, seek permission from the copyright holder or ensure your use falls under a legally permissible exception, such as fair use.
2. Attribute sources: Properly attribute and cite any copyrighted material you use (e.g., quotes, images, or data) according to applicable citation standards.
3. Understand copyright laws: Familiarise yourself with the copyright laws in your jurisdiction, including the scope of protection, fair use, and other exceptions.
4. Use licensed material: When using copyrighted material, make sure you have the appropriate license, and follow the terms and conditions of that license.
5. Educate yourself about Creative Commons licenses: Explore Creative Commons licensed works, which often allow for more flexible use, but ensure you adhere to the specific terms of the chosen license.

Avoiding Trademark Infringement:

1. Conduct a trademark search: Before adopting a new trademark, conduct a comprehensive search to ensure it is not already in use by another party. This can help prevent potential infringement claims against you.
2. Create a unique and distinctive trademark: Develop a strong, distinctive trademark that is not likely to be confused with existing trademarks in your industry.
3. Register your trademark: Register your trademark with the appropriate government agency to secure your rights and provide additional legal benefits.
4. Respect others’ trademarks: Avoid using another party’s trademark or a confusingly similar mark without permission. If you need to use a trademark for nominative or comparative purposes, ensure your use is within the bounds of legally permissible activities.
5. Monitor your industry: Stay informed about new trademarks and businesses in your industry to avoid unintentional infringement and to maintain the distinctiveness of your own brand.

By following these best practices, you can minimise the risk of copyright and trademark infringement, protect your intellectual property rights, and promote a healthy, competitive marketplace.

Legal Remedies For Infringement of Copyright

Legal remedies for copyright and trademark violations may vary depending on the jurisdiction, but they generally include civil and criminal remedies.

Civil Remedies

Civil remedies for copyright infringement can include:

1. Injunctive Relief: A court order to stop the infringing activity, which can be temporary or permanent.
2. Actual Damages: The copyright owner can recover any actual damages suffered as a result of the infringement, including lost profits and licensing fees that would have been earned.
3. Statutory Damages: A court may award statutory damages instead of actual damages, which is a set amount of damages for each work infringed.
4. Attorney’s Fees and Costs: If the copyright owner prevails in the lawsuit, they may be entitled to recover their attorney’s fees and costs.
5. Account of Profits: The copyright owner may be entitled to the profits the infringer made as a result of the infringement.
6. Anton Piller Order: The copyright owner can also seek an Anton Piller order, which allows them to enter the premises of the infringing party and seize infringing materials.

It’s important to note that the remedies available for copyright infringement can vary depending on the jurisdiction and the specific circumstances of the case.

It’s also important to consult with an experienced intellectual property attorney to understand your options and protect your rights.

Criminal Remedies

Fines and Imprisonment: Criminal penalties for copyright offenses in India range from a fine of INR 50,000 to INR 200,000 and imprisonment for a sentence of between six months and three years.

Search and Seizure: The law permits searches, the seizure of counterfeit items, and the delivery of counterfeit goods to the copyright claimant.

What are the Penalties for Infringing on a Trademark?

When you create a brand or a product, you may register it as a trademark to protect your rights to it.

However, if someone else uses it without your permission, it’s called trademark infringement, which is a violation of your rights.

The Trade Marks Act, 1999 in India outlines the remedies for the action for trademark infringement in Sections 29 and 30.

When a third party uses a trademark without permission, the owner of the trademark has two sorts of remedies at their disposal.

The Trade Marks Act of 1999 provides both civil and criminal remedies to protect trademarks.

Before the District Court in whose jurisdiction the owner of the trademark resides, civil actions may be brought by the owner of the trademark.

Civil Remedies

There are several civil remedies for trademark infringement, including:

Injunction:

An injunction is defined as a legal order that prohibits one person from engaging in a specific activity or action.

In terms of trademark infringement, it means prohibiting someone from using the trademark without authorisation.

The Court permits protection for the trademark owner through a temporary or permanent stay.

Damages:

Damages refer to the recoupment of losses incurred by the trademark owner as a result of the infringement.

Under this remedy, the monetary value of any financial loss or brand damage is recovered.

The amount of damages would be determined by the court after taking into account the owner’s actual and anticipated losses as a result of the infringement.

Possession of the offending materials:

This form of remedy suggests that the Court could order the offender to deliver all the products or all the products that fall under the brand name category.

In such circumstances, the Court may order the authorities to seize the materials accounts and destroy all related products.

In cases where the trademark pertains to services, such as a Service Mark, the court may order the offender to cease providing the services immediately.

This remedy serves as a means of safeguarding the trademark owner’s rights and preventing further infringement.

Criminal Remedies

A number of provisions in the Trade Marks Act of 1999 may also be considered criminal remedies for trademark infringement.

The subsequent are:

The criminal penalty for violating a person’s or company’s trademark is set down in Section 103 of the Act and is specified as a sentence of 6 months imprisonment that may be increased to a duration of 3 years.

The Act’s Section 104 also lists the punishments that must be meted out as a result of a violation.

If it is determined that someone has violated the rights to a trademark, the clause establishes a penalty of 50,000 rupees, which may be enhanced to a maximum of two lakhs.

Additionally, Section 105 of the same Act specifies the penalties for trademark violation.

As a criminal remedy for an effective adaptation to the aforementioned provisions, the power of the person who violated it could be taken away.

Only rational evidence of the violation will be considered in the process of police officers.

What’s Next?

Copyright and trademark infringement can cause significant harm to intellectual property owners and consumers alike.

Direct and indirect infringement are the two main types of infringement for both copyrights and trademarks.

Legal remedies available for intellectual property owners include civil remedies, such as injunctions and damages, as well as criminal remedies in more severe cases.

It is crucial to understand and respect intellectual property rights to avoid legal consequences and promote innovation and creativity.

Also use Bytescare digital protection services to protect your copyright and trademark from infringement. Book a demo with Bytescare and experience unparalleled protection.

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