Definition
The unauthorised exercise of a right exclusively granted to the intellectual property owner — including unauthorised reproduction of copyrighted works, manufacture of patented inventions, use of registered trademarks, or copying of protected designs.
Infringement is the unauthorised exercise of the IP owner's exclusive rights. Each IP right has its own infringement definition: (a) Copyright infringement (Section 51 Copyright Act): doing any act exclusively reserved for the author without licence — reproduction, communication to the public, adaptation, translation; (b) Patent infringement (Section 48 Patents Act): making, using, offering for sale, selling, or importing the patented invention without licence; (c) Trademark infringement (Section 29 Trade Marks Act): using an identical or deceptively similar mark in the course of trade for similar goods/services; (d) Design infringement (Section 22 Designs Act): applying the registered design to any article in the same class. Remedies for infringement: injunction, damages or account of profits, delivery up, and in some cases (copyright) criminal prosecution.
Statutory Definition
Section 29(1), Trade Marks Act, 1999: 'A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark.' Section 51, Copyright Act, 1957: 'Copyright in a work shall be deemed to be infringed when any person, without a licence granted by the owner of the copyright, or the Registrar of Copyrights, does anything, the exclusive right to do which is conferred upon the owner of the copyright.'
Etymology & Origin
From Latin 'infringere' (to break against, to violate) from 'in' (against) + 'frangere' (to break). IP infringement 'breaks against' the rights of the IP owner — transgressing the legal boundaries that protect their creation.
Full Legal Analysis
Infringement: Crossing the IP Line
Every intellectual property right is defined by exclusivity — what the owner has the exclusive right to do. Infringement is the violation of that exclusivity: doing what only the IP owner is authorised to do, without that authorisation. The consequences range from civil injunctions and damages to criminal prosecution — depending on the nature and scale of the infringement.
Primary vs. Secondary Infringement (Copyright)
(a) Primary infringement: Directly doing the restricted act (copying, reproducing, broadcasting) without licence. (b) Secondary infringement: Facilitating or enabling infringement by others — importing infringing copies, selling infringing copies, providing means for making infringing copies. Section 51(b) Copyright Act covers secondary infringement: permitting a place for use in communication to the public of infringing works for profit; selling or hiring infringing copies.
Defences Against Infringement
(a) Fair dealing (Section 52 Copyright Act): Private use, research, criticism, review, reporting of current events, education — these uses do not infringe even without the copyright owner's permission. India's fair dealing is narrower than the US 'fair use' doctrine. (b) Non-deceptive similarity (Trademark): If the mark used is not likely to cause confusion in the mind of an average consumer, it may not be infringing even if similar. (c) Prior use (Trademark): If the defendant had been using the mark in good faith before the plaintiff's registration, they may have a defence of prior use. (d) Compulsory licence (Patent): The government can grant a compulsory licence to allow others to use a patented invention for public benefit (Section 84-89 Patents Act).
“Infringement is the theft of creative effort. Every time a book is pirated, a film is copied, a pharmaceutical product is manufactured without licence — the creator or inventor loses the reward that incentivised their effort. IP law’s enforcement ensures that the incentive to create and innovate remains real.”
This Term in Indian Statutes
Trade Marks Act, 1999, 1999
"A registered trade mark is infringed by a person who, not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered."
Trademark infringement: identical or deceptively similar mark used in trade for same goods/services — without registration or permission
