What To Do When Your Trademark Is Infringed? | Legal Articles

 

Legal Articles

What To Do When Your Trademark Is Infringed?

In our previous instalment we shared a general overview of what trademarks are, and what they seek to protect. It was noted that a trademark, generally speaking, is a mark (sign, logo, slogan etc) that one or an entity intends to use for the purpose of identifying their goods or services from others. In other words, it is a sign that identifies certain goods or services that are offered by a particular entity or individual.

In the market, some products or services may be more popular with customers than others of the same kind, thereby rewarding the supplier with higher sales and better reputation than other businesses offering the same products or services. Depending on the market share of the preferred products or services, other players may find it difficult to penetrate into that market. In most cases, this is the main reason why some players in that market may resort to supplying products that are strikingly similar to the preferred products.

Trademark infringement denotes the unauthorised use of a registered, identical mark or something with similar resemblance, in the course of trade, in a way that is likely to cause confusion or deception.  The infringement of a trade mark takes place in three basic ways, as per Section 34 of the Trade Marks Act of 1993 (the Act);

  1. The unauthorised use in the course of trade in relation to goods or services in respect of which the trade mark is registered, of an identical mark or of a mark so nearly resembling it as to be likely to deceive or cause confusion;
  2. The unauthorised use of a mark which is identical or similar to the trade mark registered, in the course of trade in relation to goods or services which are so similar to the goods or services in respect of which the trade mark is registered, that in such use there exists the likelihood of deception or confusion;
  3. The unauthorised use in the course of trade in relation to any goods or services of a mark which is identical or similar to a trade mark registered, if such trade mark is well known in the Republic and the use of the said mark would be likely to take unfair advantage of, or be detrimental to, the distinctive character or the repute of the registered trade mark, notwithstanding the absence of confusion or deception.

The determination of whether there has been an infringement involves a comparison of marks, products and/or services of the parties involved in the dispute. It usually is not sufficient to compare the other elements to the exclusion of the other.

Where infringement has been established, the owner of the trade mark usually sends a letter of demand for the infringing party to desist from further unauthorised use of the mark. The owner of the trade mark may also get an interdict for the unauthorised use to cease, claim damages and/or royalties that would have been due had the infringing party sought permission to use the mark in the first place, or the deletion of the mark on the products or services material of the infringing party. Where deletion of the mark on the products or services material is not possible, delivery of the material to the owner of the trade mark may be considered. When determining the amount of damages, the Court may conduct an inquiry as it deems suitable under the circumstances.

 

Van Deventer and Van Deventer Incorporated assists with labour law, civil and general litigation, criminal litigation, human rights law, family law matters such as maintenance, divorces, protection orders, Rule 43 applications, Rule 58 applications and others. We also assist in personal injury, company law and deceased estates amidst an array of others. 

 

Please find relevant information from the below blogs: 

https://www.vandeventers.law/Legal-Articles/entryid/2084/what-a-trademark-is-and-what-it-aims-to-protect 

https://www.vandeventers.law/Legal-Articles/entryid/2086/are-unregistered-trademarks-protected-against-infringement 

Contact us for comprehensive assistance.

The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s peculiar situation. We disclaim all liability for actions one may take or fail to take based on any content on this site. 

Comments are closed for this post, but if you have spotted an error or have additional info that you think should be in this post, feel free to contact us.


Subscription

Get the latest updates in your email box automatically.

Search