What to Do If Someone Copies Your Brand Name?

Building a brand takes time, money and effort. But what happens when another business starts using the same or a deceptively similar brand name?

If someone is using your brand name, logo or trademark without permission, you may have legal remedies under Indian law. The appropriate action depends on whether your trademark is registered, how the other party is using it, and whether customers are likely to be confused.

Here is what you should do if someone copies your brand name in India.

1. Check Whether Your Brand Name Is a Registered Trademark

Your first step should be to check the trademark status of your brand.

A registered trademark generally gives the registered proprietor an exclusive right to use the mark for the goods or services covered by the registration, subject to the provisions of the law. Section 28 of the Trade Marks Act, 1999 provides for these rights.

You can check the trademark records through the official IP India website.

If your trademark is registered, your position may be stronger when dealing with unauthorized use.

2. Collect Evidence of the Copying

Do not immediately confront the other business without preserving evidence.

Collect and securely save:

Screenshots of the copied brand name or logo
Website pages and URLs
Social media profiles and posts
Product packaging and advertisements
Invoices or bills, if available
Photographs of products or signboards
Dates showing when you started using your brand
Your trademark registration certificate, if registered
Evidence showing your brand’s reputation and customer recognition

This evidence may become important if you need to send a legal notice or pursue legal proceedings.

3. Find Out How Similar the Two Brands Really Are

Not every similar business name automatically amounts to trademark infringement.

The important questions can include:

Are the names identical or deceptively similar?
Are the businesses selling similar goods or services?
Could customers mistakenly believe that the businesses are connected?
Is the other business using the name commercially?
Is your trademark registered?
How well-known or distinctive is your brand?

For a registered trademark, Section 29 of the Trade Marks Act addresses infringement involving identical or deceptively similar marks and situations where use may cause confusion or association with the registered trademark.

4. Send a Legal Notice

If the use appears unauthorized, you may consider sending a trademark infringement or passing-off legal notice through a lawyer.

The notice can ask the other party to:

Stop using the disputed brand name or logo
Remove the name from websites and social media
Stop selling or advertising products under the disputed mark
Withdraw infringing promotional material
Provide an undertaking not to use the mark in the future
Address any other appropriate claims or losses

A legal notice can sometimes resolve a dispute without immediately going to court.

5. What If Your Trademark Is Not Registered?

Not having a registered trademark does not necessarily mean that you have no legal remedy.

Section 27(2) of the Trade Marks Act preserves actions for passing off even though an infringement action cannot ordinarily be brought for an unregistered trademark.

Passing off generally concerns situations where another person represents their goods or services in a manner that may lead consumers to believe that they are connected with your business.

However, proving a passing-off claim can require evidence of factors such as your goodwill, the other party’s conduct and the likelihood of confusion.

6. Consider Filing a Trademark Application

If your brand is not registered, consider obtaining professional advice about trademark registration.

Registration can provide important legal protection and make it easier to establish your statutory rights against infringing use.

Before applying, conduct a proper trademark search to identify potentially conflicting marks.

Remember that simply registering a company name, business name or domain name is not the same as obtaining trademark registration.

7. You May Be Able to Approach the Court

If the dispute cannot be resolved, legal proceedings may be considered.

Under Section 134 of the Trade Marks Act, suits relating to trademark infringement and certain passing-off claims are instituted before a District Court having jurisdiction.

Depending on the facts of the case, Section 135 provides for remedies that can include an injunction, damages or an account of profits, along with other appropriate relief.

The exact remedy depends on the facts and evidence of each case.

What Should You Do Immediately?

If you discover that someone has copied your brand name, follow this simple checklist:

Step 1: Check your trademark registration status.
Step 2: Preserve screenshots and other evidence.
Step 3: Compare the two brands and businesses carefully.
Step 4: Check when both parties began using the name.
Step 5: Consult a trademark lawyer if the use appears problematic.
Step 6: Consider sending a legal notice.
Step 7: If necessary, explore appropriate court remedies.

Frequently Asked Questions

Can I take action if my brand name is not trademarked?

Yes. An unregistered trademark generally cannot be the basis for an infringement action under Section 27(1), but the law preserves passing-off remedies under Section 27(2).

Is copying a brand name always illegal?

Not necessarily. The legal position depends on factors such as similarity, the goods or services involved, registration status, likelihood of confusion and other circumstances.

Can I send a legal notice for trademark infringement?

Yes, a legal notice can be considered where there appears to be unauthorized use of your trademark. It can demand that the other party stop the disputed use and address other appropriate relief.

What if someone copies my brand name on Instagram?

Preserve screenshots, profile information and relevant posts first. Depending on the circumstances, you may consider platform reporting, a legal notice and appropriate legal remedies.

Should I register my brand name as a trademark?

Trademark registration can provide valuable protection for a brand. Businesses should consider registering important brand names, logos or other distinctive marks where appropriate.

Final Takeaway

If someone copies your brand name, do not ignore it and do not immediately panic. Start by checking your trademark status, preserving evidence and determining whether the use is likely to create confusion.

A registered trademark can provide statutory protection, while owners of unregistered marks may still have remedies through passing off in appropriate circumstances. The right legal strategy depends on the facts of your particular case.

Legal Disclaimer: This article is for general educational and informational purposes only and does not constitute legal advice. Trademark disputes can involve complex factual and legal issues. Consider consulting a qualified trademark lawyer for advice regarding a specific dispute.