4.6 Enforcing Trademark: Trademark Infringement Claims, Defense and Remedies in Trademark Infringement

The infringement's test: the likelihood of confusion — the identical-or-similar mark on the identical-or-similar goods, judged through the consumer's eyes (the sound, appearance and meaning comparison; the impression's totality). The related wrongs: the passing-off action (the unregistered reputation's protection: the goodwill, the misrepresentation, the damage — the classic trinity); the counterfeiting's aggravated face (the identical mark's deliberate copy). The defences: the registration's invalidity (the prior right, the descriptiveness, the deceptiveness — the cancellation-and-rectification routes); the honest-concurrent-use; the own-name defence's lore; the non-use's attack (the use-it-or-lose-it cancellation — the term's condition); the exhaustion-and- parallel-import faces (the first-sale doctrine). The remedies: the injunction (interim and permanent); the damages-or-account-of-profits; the infringing goods' and implements' seizure and destruction; the border measures (the customs' suspension — U7.3); the criminal faces (the counterfeiting scales of the national regime); the corrective advertising's modern lore. The verified prescribed case: Madan Pd. Lamsal vs. Repsona Publication Pvt. Ltd., NKP 2068 B.S., Number 9, D.No. 8686, p. 1545 — the "BUSINESS AGE" dispute: the magazine's editor registered the composite mark in his own name, though the publishing company's board had authorised him to publish and register on the company's behalf; after resigning, he used the mark for a rival publication; the company sought cancellation (the Act's Section 18(3) faces). The Supreme Court ruled for the company: the mark had been…