• Use of trademark by other

Dear Sir,
we are running a chain of 10  parlors in south India. started in year 2000 and got our trade name registered.
From last few days one ex employee of our salon started a new salon with same as our  name ( he changed one last alphabet )  at one kilometer from our our existing branch in Hyderabad, he is telling clients that it is opened by by the same company.
What action we can do under this circumstances?? a prompt reply will be helpful.
Asked 2 years ago in Intellectual Property from Hyderabad, Andhra Pradesh
Sir, immediately file an infringement against him for restricting him from using your Trade Mark. You can also issue a cease and desist notice to him. But if you issue a cease and desist notice, he may file a caveat in the court in which you cant get ex-parte injunction. There is also criminal remedy for which you have to file a private complaint at the majesterate court for punishing him.
Advocate Buvaneswari
Advocate, Chennai
24 Answers
12 Consultations
4.4 on 5.0
Hi, First issue legal notice restraining the using your trade mark and then file a suit for infringement of trade mark and also seek for damages for the infringement of the trade mark.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
Send him a legal notice asking him to close his shop and not to infringe your trademark.  Ask him to pay u damages for harming your good will.  If how reply is not satisfied or he doesn't restrain from doing the same business infringing your trademark, then file a suit for infringement of your trademark and seek damages simultaneously.
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
If the police is not cooperating, you can also file a complaint before the magistrate. the court proceedings no doubt will take time but an application for ex-parte injunction before the civil court, wont take that long. such proceedings are decided usually within a year or so.

for filing your FIR, mention all particulars in detail in your police complaint. that would frame basis for your criminal case so try to include every small detail in it.
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
Hi, have can file  a suit for damages and also for restraining him not to use your trade mark and also lodge a private complaint in the magistrate for infringement of the trade mark......... i can say that court proceedings will take time but you don't have any other remedy but you have to approach court only.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
As advised u earlier immediately file a infringement suit. It is indeed that the civil court proceedings will take long time. But you are in no way affected if you are getting interim injunction even on the date of first hearing of your case. Because the court will restrain him from using your trade mark till the disposal of your case so your rights on your trademark will be safeguarded.
Advocate Buvaneswari
Advocate, Chennai
24 Answers
12 Consultations
4.4 on 5.0
Dear Use of Trademark by Other,

All my legal friends have advised you the most basic fundamental of trademarks but there is more to it.

1) Issue a cease and desist notice first

2) Dont worry about the caveat that your ex-employee might file as the caveat will not be considered during admission phase... not many people who copy and trade file caveats.

3) If your ex-employee stops using your trade name after receiving the cease and desist notice, then well and good otherwise File an injunction suit at High Court (Original Side) in Chennai. As per Section 135 (2) of the Trademark Act, an ex-parte order will be passed against your ex-employee restraining (stopping) him from the use of your trade name (But you have to prove that you have been using the mark.... only registration of trademark wont suffice). Once you file a case for infringement or passing off under Section 29 or 27 (2) of the Act, then the High Court takes immediate cognizance of the same and will hear you ex-parte (that is one sided hearing wherein you have to prove that you are the bonafide owner of the mark by providing proofs like ads in newspapers, magazines, etc., P/L A/c statements of your firm, Bills/Invoices of your firm wherein your trade name is printed etc along with your registration certificate). So within a matter of 7 to 10 days, you will get a order in your favor stopping your ex employee from using the trade name that you rightfully own.

4) If you go to the police as you have already done, then under Section 115 (4) of the Act, the police has to send for Controller's decision as to the similarity of the marks. Further the Inspector doesnt have the power to do it. The minimum rank specified for conduction of a raid as per the Act is DCP/DSP of Police. You have to approach either of them to take cognizance of the infringement committed by your ex-employee. Heavy payments have to be made to the Police to channelize the raid.

5) Last but not the least, trademark cases doesnt take more than four months time unless Advocates delay it. There are Supreme court strictures wherein lower courts have been instructed to dispose off the infringement/passing off cases within four months at the maximum, the last stricture being issued by Supreme Court in Bajaj Vs TVS case

None of the cases I have dealt with either at Mumbai, Delhi or Kolkata High Court have not taken more than 6  to 8 months to dispose off in entirety.
Sidharth Das
Advocate, Kolkata
21 Answers
1 Consultations
5.0 on 5.0
Hi,
You are advised to issue legal notice immediately.According to Trade Mark registration rules, no body can use similar name. I am available at Hyderabad, you may contact me for legal assistance.
Mohammad Khaleel Ahmed
Advocate, Hyderabad
184 Answers
1 Consultations
3.9 on 5.0

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