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Section 106 – The Trade and Merchandise Marks Act,1958

The Trade and Merchandise Marks Act,1958

Section 106. Reliefs in suits for infringement or for passing off

(1) The relief which a court may grant in any suit for infringement or for passing off referred to in Sec. 105, includes an injunction (subject to such terms, if any, as the Court thinks fit) and the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery-up of the infringing labels and marks for destruction or erasure.

(2) Notwithstanding anything contained in sub-section (1), the Court shall not grant relief by way of damages (other than nominal damages) or an account of Profits in any case-

(a) Where in a suit for infringement of a trade mark, the infringement complained of is in relation to a certification trade mark; or

(b) Where in a suit for infringement the defendant satisfies the Court-

(i) That at the time he commenced to uses the trade mark complained of in the suit he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on the register or that the plaintiff was registered user using by way of permitted use; and

(ii) That when he became aware of the existence and nature of the plaintiffs right in the trade mark, he forthwith ceased to use the trade mark in relation to goods in respect of which it was registered; or

(c) Where in a suit for passing off the defendant satisfies the Court-

(i) That at the time he commenced to use the trade mark complained of in the suit he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was in use; and

(ii) That when he became aware of the existence and nature of the plaintiffs trade mark, he forthwith ceased to use the trade mark complained of.

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The Trade and Merchandise Marks Act,1958

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