The general meaning of remedy is to cure something, the remedies for infringement to copyrights and trademark are also provided under the respective Copyright Act,1957 and Trademark Act,1999 to give relief to the real owners whose rights are infringed or violated.

Three types of remedies are available against infringement of copyright as well as under infringement of Trademarks, these are –

1.      Civil Remedies

2.      Criminal remedies

3.      Administrative Remedies

Each remedy is stated under a respective section of copyright Act 1957 and the Trademark Act 1999, further we will discuss,

 Remedies available under the copyright Act, 1957-   under the copyright act,1957 both civil and criminal remedies are available to give relief to the copyright owner against the infringement. Chapter XII of the copyrightAct,1957 and section 55 to section 62 of the Copyright Act,1957 deals with the civil relief that can be granted by the infringed copyright owner.

Section 55 of the copyright act 19571 talks about the civil remedies –

The civil remedies are available in case of infringement of copyright –

·  when a copyright work is infringed under section 51 of the copyright Act,1957, the owner of the copyright shall be entitled for the civil remedies from the misuse of his own work, by the way of injunction, damages and accounts of profit and many other civil remedies are stated therein, the plaintiff shall not be entitled for any kind of civil remedies other than injunction, if the defendant was not aware of the subsist of such copyrighted work,

· when the literary, dramatical, musical or artistic work of the real owner is published in the name of all the copies published work which leads to infringement of the copyright,

· The cost of proceeding shall be the discretion of the court in respect of infringement of the copyright.

The reliefs provided under the civil remedies are-

1.      Injunctions

2.      Damages and accounts of profit

3.      Specific remedies in case of threats

4.      Jurisdiction of courts

1.      Injunctions as a part of civil remedies – The first and the foremost relief for the plaintiff is injunction that means to stop, or to ban, restrict or prohibit any act.

Similarly, the injunction is sought to restrain the defendant to constitute such act which created infringement to copyright as stated under sub section 1 of section 55 of the copyright act, 1957.

The injunction is the only remedy available when the defendant infringes the copyrighted work of the owner unknowingly which means that he was not aware of the subsist work and has no reasonable ground to believe so, such person is known as the innocent infringer. In such cases the plaintiff cannot recover the damages unless the court orders the defendant to pay some part or whole of the profit earned by the defendant by the sales of the infringing copies.

In the case

   Gramophone co. of India ltd v Mars recording Pvt ltd2.

  In this case the respondent started making audio cassettes of musical company which was owned by the plaintiff that is owned by Gramophone company of India ltd, which infringed the rights of the owner.

The plaintiff filed a suit against the respondent for injunction so as to restrain the respondent from interfering in the sale of cassettes that was infringed, based on the facts the lower court granted the injunction in favour of the plaintiff under section 55(1) of the Copyright Act,1957 and the same was approved by the High court as well.

 2.      Damages and accounts of profit- Apart from injunction, section 55 of the Copyright Act, 1957 provides the remedy of damages and accounts of profit. In a suit for infringement of copyright against the producer, the publisher of the book i.e the plaintiff filed for injunction as well as claimed for the damages for the account from the producer i.e the respondent. The Andhra Pradesh High Court dismissed the petition by stating that it could not be said as an injunction is not an appropriate remedy, further the High Court laid that the remedy for damages and accounts of profit can be considered as a remedy in alternative depending on the reasonable circumstances.

In the case

PN Krishnan Murthy v Co-operative for American Relief Everywhere3.

 In this case the plaintiff is the author of a book named as Lakshma kills a Tiger and owns a copyright from 1969. This story was converted into a comic by the care for children in many languages. In 1970 the care contracted with CAP for publications of 15lakh comics in Malayalam but the contract was terminated due to the difference of opinion, In 1971 the plaintiff filed a suit for infringement of copies under section 55 of the Copyright Act 1957. The District Court held in 1998 that as the respondent has no reasonable grounds to prove the contract between the care and the CAP, it was fond that the infringement of copyright exists and thus the remedies of injunction as well as of the damages was awarded to the plaintiff for the total of Rs 2,31,000 with 18 percent interest from the date of suit .

3.      Specific remedies in case of threats – Apart from the above stated remedies, section 60 of the Copyright Act,1957 provides a specific remedy in case of groundless threats of legal proceedings. It states that is a person is threatened with any alleged infringement of Copyright and the person alleging such infringement does not have any legal right to make such threats, the person who is been alleged can file a declaratory suit and obtain an injunction from such threats. This provision is designed to protect a person from the wrongful threats relating to infringement of the Copyright and the only remedy provided under this section is the injunction for the threats and damages only if reasonable damage is caused due to the occasion of such threats. The provision of this section does not apply to a person who has made such threats with diligence, an action for infringement of copyright is claimed by him.

 4.      Jurisdictions of Court – section 62(1) states that every suit or any civil proceedings in respect of infringement of copyright shall be instituted in the District Court, having jurisdiction, this enables the copyright owner to sue in District court for infringement of copyright within whose jurisdiction he actually resides or carried out his business irrespective of the place where the infringement occurred. This is a special provision provided for the copyrights owner and was not applicable to the trademark or the patents holders earlier.

Section 63 of the copyright act 19571 talks about the criminal remedies – section 63 to section 70 of the Copyright Act,1957 deals with the criminal relief that can be granted by the infringed copyright owner.

    The criminal remedies provided for infringement are imprisonment for not less than 6 months and up to 3 years, minimum fine of Rs. 50,000 which may extend to Rs.2,00,000, seizure of infringing goods and delivering the infringed goods to the real owner of the copyright.

 The reliefs provided under criminal remedies are-

1.      Statutory scheme

2.      Judicial approach

1.      Statutory scheme – Section 63 to 70 of the Copyright Act,1957 deals with the criminal remedies available to protect the owner of the copyright. The act constitutes an offence when a person knowingly with malafied intention copies a work or any other right infringed under this act or knowingly abet such infringement.

The act provides minimum punishment, further the court has power to impose lesser punishment for reasonable and adequate reason and that is to be mentioned in the judgement as well.

 The act also provides offences relating to the register of copyright which are kept under for false representation with the motive or intention of deceiving any authority or officer. The amended copyright act empowers the police officer, not below the rank of sub-inspector to seize without warrant all the copies of work, if he is satisfied that the offence has been committed in relation to the infringement of copyright and all the copies are required to be produced before the magistrate.

 2.      Judicial approach – The criminal remedies provided for infringement are imprisonment for not less than 6 months and up to 3 years, minimum fine of Rs. 50,000 which may extend to Rs.2,00,000.

Administrative remedies –   An effective and quick remedy was made in order to prevent importation of infringing copies in India. Section 53(1) of the copyright act,1957 empowers the registrar of copyright to make an order to prohibit such infringed copyrighted work made outside India, if made in India would infringe the work.

In the case,

Gramophone Company of India Ltd v Bindera bhadur Pandey4.

 In this case the Gramophone Company of India Ltd., is the applicant and the owner of copyright in cassettes. The information was received from the customs authorities at Calcutta that a consignment of pre-recorded cassettes has been sent by Universal Overseas Private Ltd, Singapore and had arrived at Calcutta port and was awaiting dispatch to Nepal. The cassettes was lying at the Calcutta pork was in broken condition, the appellant found that a substantial number of cassettes were pirated.

Thus administrative action was made by the registrar of copyright under section 53(1) of the copyright act,1957 which empowers the registrar of copyright to make an order to prohibit such infringed copyrighted work made outside India, if made in India would infringe the work.

Remedies available under the Trademark Act,1999 – Section 30 of the trademark act,1999 provides the remedies against the infringement of trademark so as to protect the real owner of the registered trademark.

Three types of remedies are available against infringement of Trademarks, these are –

1.      Civil Remedies

2.      Criminal remedies

3.      Administrative Remedies

1.     Civil remedies – The civil remedies are same as the remedies provided for copy right that includes injunctions, damages of accounts, claiming of profit as well as jurisdiction of courts. The remedies under trademark act are provided for both registered as well as unregistered trademark holders. These civil proceedings are initiated before the District Courts.

The foremost remedy is to restrict the person to use such trademark which is registered by another party that is known as injunction, which means to file a suit for injunction against the infringer,

The second remedy under the civil proceedings include damages and accounts for profit earned by the infringer by constituting act which infringed the trademark of another party, the damage as a relief in trademark plays a vital role as the main aim of including this provision under the trademark act is to provide monetary compensation to the owner of trademark whose rights are infringed by the infringer. The amount of damages is granted by the court after calculating the actual loss occurred to the owner plus the profits earned by the infringer.

The custody of material infringed is another remedy to protect the owner of the trademark, in this relief the court may ask the infringer to deliver all the goods which are labelled with the brand name of the well known trade mark.

In the case

      Lakme Ltd v. Subhas Trading & others5

The defendant was using the trademark ‘like-me’ which was similar to the registered trademark of  plaintiff ‘ lakme’  both the brands was dealing in cosmetic products ,the court held that the similarity in brand names can confuse the public ,thus the court confirmed the remedy of injunction against the defendant .

2.     Criminal remedies – Section 103 and 104 of the trademark act, 1999 provides criminal remedies to protect the trademark holder, section 103, provides imprisonment for the infringer not less than 6 months but not exceeding 3 years, section 104 talks about penalties of minimum fine of Rs. 50,000 which may extend to Rs.2,00,000.

3.      Administrative Remedies – An effective and quick remedy was made in order to prevent importation of infringing trademark in India. Section 9(1) or section 11 of the trademark act ,1999 empowers the registrar of trademark to make an order to prohibit such infringed trade made outside India, if made in India would infringe the mark. Thus, import as well as export of goods which are labelled with a trademark, been fraudulent and is restricted.

Conclusion- several remedies exits in cases where the infringement related to copyright or trademark is made to protect the creative work of the businessman.

Hence a little bit of awareness is required among individuals in order to avoid any kind of infringement on their own products.