Trademark Infringement in the United Kingdom

Since a trademark is a critical success factor of any business, its infringement can lead to huge losses and thus is not without legal consequences. Since such litigations form up a huge portion on the contingencies portion in an entity's financial statements, the entity must be aware itself of being unknowingly guilty of trademark infringement.

It is often difficult to determine if a trademark has been infringed or not, if it was done unknowingly in good faith. Moreover, if the trademark was subject to a disclaimer, if the disclaimed portion of the trademark is used, the trademark is not infringed. A trademark is only infringed if the defendant uses a mark or symbol in relation with his goods and services which are identical with that used by the claimant in relation with his goods and services, and there is evidence that it was done knowingly. The defendant's intent in selecting the mark along with the marketing channels used are other factors that are considered before establishing whether there has been an infringement or not.

There are various repercussions for trademark infringement. A person can either be imprisoned for over three months, which may extend to two years in worst-case scenarios, or be fine. Both penalties can be inflicted in certain cases. There are various civil and criminal remedies available for trademark infringement in the United Kingdom in the form of damages, injunctions or accounts. The person or entity being wronged can ask for a temporary restraining order and preliminary or permanent injunction to stop further infringement. The infringer could be liable for statutory damages and dilution of business reputation or both. If one is lucky, a coexistence agreement between the defendants and the plaintiffs can also be formed, negotiating a reasonable settlement.

In case goods are imported under a trademark registration by the infringer, the claimant has to file a written notice with the collector of Customs that he is the sole proprietor of the registered trademark and that the collector prohibits the collection of any infringing material under the Commissioners for Revenue and Customs Act of 2005. All such goods and services which are imported into the United Kingdom or exported out of the United Kingdom will be either detained or confiscated.

Sine trademark infringement is a violation of exclusive rights associated with the registration of a trademark; the defendant is not even allowed to use a trademark which is even confusingly similar to that of the plaintiff. There are various associations in United Kingdom that deal with such issues. The Trade Marks Act of 1938 declared penalties for classic infringement i.e. if the mark of the defendant is likely to deceive or cause confusion whereas the Trade Marks Act of 1994 further broadened the matter and defined infringement as the likelihood of association between two marks, regardless of the likelihood of confusion. All the lawsuits have to be brought to the High Court or the Court of Session in Scotland. The registration process in the United Kingdom is the same wherever you go in its territory.