Summons to cease infringement of a trademark - template with discussion
A trademark is not only a symbol under which an entrepreneur conducts business activity - it is also an element of property, a sign under which the company is known and a symbol of its reputation. No wonder that almost all companies that have registered their trademark guard it and react when an unauthorized entity infringes it. What can they do? In addition to using other means, they may also request the person who unlawfully uses the trademark to stop infringing the trademark.
Trademark infringement - what does it mean?
Trade mark infringement can be briefly defined as any act of unauthorized persons that goes beyond normal use and which causes or may be harmful to the proprietor of the mark.We cannot find a definition of this type of infringement in any legal act regulating industrial property law, but we can derive it from the provisions on the use of a trademark. Therefore, it is everything that goes beyond the permitted use of the mark, i.e., for example: unjustified placing it on a website or company seat or unlawful marking of goods or services with a trademark. In such a situation, the trademark owner may react in the manner prescribed by law.
Trademark infringement - what can the owner do?
The provisions of the Civil Code and the Industrial Property Law Act provide for several ways in which an entrepreneur can assert his rights. It can start legal proceedings, but there are also pre-litigation methods to protect your trademark rights. The law suggests the following course of action in a situation where the right to a registered trademark is infringed:
The entrepreneur may send a summons to the breach of trademark infringement, i.e. a letter in which he requests the addressee to cease the actions indicated therein. This is usually the first action of the trademark owner. Usually, it is made in writing, sometimes several times, before bringing the claim to the court, and subsequent summons to cease infringement of the trademark, to which the infringer did not respond, may be attached to it as evidence.
The trademark owner may simultaneously or separately send the infringer a claim for damages. It can be done directly (for example, by knowingly misleading the trademark proprietor's regular counterparties by using his trademark) or indirectly (for example, by suggesting cooperation with the trademark owner by placing the mark on a storefront). The summoner should specify in the summons the exact size of the damage and the method of its compensation - this may be the payment of the appropriate amount of money to the owner of the trademark, an apology published in the newspaper or notifying the summoning contractors in person about the infringement. Such a claim may also be part of the lawsuit.
An element of the call for compensation for damage or for a lawsuit is often also a claim for the issue of unjustified benefits, i.e. benefits obtained by the infringer in connection with acting to the detriment of the trademark owner. As in the case of a claim for damages, a claim for unjustified gain may be one of the claims made by the owner of the mark in court.
An interesting tool is a preventive trademark infringement claim. Its purpose is to prevent infringements - if the trademark owner knows that someone is taking action to infringe a trademark, he can apply to the court for an order to stop such actions (sometimes it takes the form of an order to recall or even destroy a batch of goods, with unjustified markings). trademark).
If the pre-court summons to cease infringement, the claim for compensation for damage or the issue of unjustified profits or preventive claims is ineffective, the trademark owner may take legal action. In such a case, he may bring a claim under the provisions of the Civil Code (in particular, Article 415 applies, stating that the person who caused the damage is obliged to repair it) or, depending on the circumstances of the infringement, penal or compensation provisions the Industrial Property Law.
Summons to cease infringement of a trademark - elements
As mentioned above, usually the first step of an entrepreneur whose trademark has been infringed is to submit an invitation to stop infringing trademarks. Typically, this is a document issued by the trademark owner or entity representing the trademark (for example, a law firm) containing:
identification of infringing actions,
indication of trademark rights,
requesting the cessation of further actions infringing the rights of the trademark owner,
sometimes also requesting the release of benefits obtained thanks to the unlawful use of a trademark,
an indication of the date by which the infringing party is to cease the actions indicated in the letter and compensate the damage,
determination of the consequences of failure to comply with the demands expressed in the letter, i.e. usually the commencement of court proceedings.
An element of the summons to cease infringement of a trademark may also be a proposal to conclude a settlement instead of starting proceedings.
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