A caution notice gives notice to third parties that the subject trademark (referred to in the notice) is a trademark of another (your client). It further cautions the third party against unauthorized use of the subject trademark, or otherwise they will be charged with infringement/passing-off action. While there is no statutory requirement of publishing/sending a caution notice, however, they are a practical requirement and may also act as an evidence against acquiescence.
A draft caution notice is provided below:
Notice is hereby given that our client, ABC India., Inc. II of Mahavir Nagar, Road 27, Plot 31/46, New Delhi, 110022, India (“Client”) is the sole owner and proprietor of (a) trademark “ABC” and various ABC logos as depicted below (“Trademarks”), (b) copyright in the “ABC” logos, products, packaging, marketing literature etc., and (c) goodwill in the trademark, trade dress and design of ABC based products etc. (collectively referred as “Client IP”).
ALL THE LOGOS OF THE ABC BRAND MUST BE PUBLISHED IN THE BOX ABOVE, SO THAT THE READER COULD DISCERN THE REAL AND THE FAKE PRODUCTS.
It has come to our attention that certain fakes/replicas/counterfeits (“Counterfeits”) of ABC branded products are being offered for sale at (ADDRESS) and www.Fakeisreal.com (“Website”) by certain unscrupulous traders, including XYZ Pvt. Ltd, having registered office at Gurgaon, Haryana and MNV Retail Private Ltd, having registered office at Noida. These counterfeits so nearly resemble the original ABC branded products, that it is impossible for a consumer to differentiate between them. Our clients believe that this is being done with a view to cause confusion in the market amongst consumer and ride upon client’s goodwill.
These counterfeits may be detected by carefully reviewing the product and their packaging. Please note that ABC U.S.A Private Limited and ABC India Private Limited are the ONLY authorized importers of original ABC branded products in India. Products bearing the name of ANY other imports may be a counterfeit (See below). The counterfeits are being delivered in boxes that do not correspond to the product inside the box and their MRPs as listed on the website, do not match the MRPs of the original product of our client.
PROVIDE LABEL OF REAL AND COUNTERFEIT PRODUCTS
Consumers are cautioned against purchasing these counterfeits from the website or physical retail stores. Our client shall not be responsible for any loss or damaged caused on account of the purchase of counterfeits. Consumers and members of the public and the trade are also requested to bring such WRONGFUL OR INFRINGING USE OF CLIENT IP BY ANY UNSCRUPULOUS TRADERS, to the notice of our client.
The notice is being issued, reserving all rights of our client in law and equity.
NAME OF THE FIRM
This post has been contributed by Utkarsh Yadav, a final year techno legal student at School of Law, UPES University.
Image from here