Legal Notice
Querist :
Anonymous
(Querist) 29 March 2011
This query is : Resolved
Hi,
I am a 2year advocate. Please forgive my ignorance for asking this question, but this is the first time I am doing litigation work and I don't know from whom to take guidance.
What are the implications of a Legal Notice?
Can anything stated in a legal notice be later proved as an admission against the party sending the notice?
Should a legal notice specify all the relief claimed by the party or only part of it?
Should a legal notice be as detailed as possible or as brief as possible?
Querist :
Anonymous
(Querist) 29 March 2011
For instance in a legal notice for an action of passing off, should we ask the party to pay damages worth Rs....... being the profit or revenues earned by passing off.
R.Ramachandran
(Expert) 29 March 2011
In the legal notice, you only have to say that you have definite information that the noticee is indulging in the act of 'passing off' the goods / services under the trade mark / trade name .... of your client.
You have to ask him to forthwith desist from doing so, otherwise your client will be taking appropriate legal action as permissible and as advised.
That is all to it. You cannot ask for any damages in the legal notice.
If the noticee does not stop his activities within a reasonable period, say a fortnight, then you have to take appropriate action.
Even if he replies, depending upon the reply, you have to take action.
Querist :
Anonymous
(Querist) 29 March 2011
Thanks Mr. Ramachandran for the response. However, I am still not clear of one thing. If upon receiving the notice the infringing party stops his act of passing off. Does that mean we would not be able to claim damages from him in respect of the business he has already taken away from us thereafter?
R.Ramachandran
(Expert) 29 March 2011
Suppose you infringe my trade mark / trade name. Your defence would be that you are not aware that you are infringing anybody else's right. That is why notice has to be issued and if the other party stops then it proves its genuineness. If it persists and insists that it is not infringing one's rights, then naturally you have to approach the court and ask for seizure of goods, then ask for rendition of accounts, damages etc. Otherwise, how can you ask.
Also think of another situation. You are infringing my trade mark / trade name. You make merry profit. I jolly well keep quite. But on one fine morning issue a notice and claim the damages right from the beginning. Would you agree to pay damages right from the beginning?
Querist :
Anonymous
(Querist) 29 March 2011
In the present case, infringing party was an employee of the firm. He convinced my client to establish a brand under our firm. But we did not register the brand or the trademark. AFter sometime he has started proprietorship in the name of the brand. He is operating separately but has taken away clients and vendors. So he has been defrauding.
Should we give him a notice before taking legal action? If yes, do we mention about the damages we are claiming?
R.Ramachandran
(Expert) 29 March 2011
Did you at any point of time use the brand name in question and if so for how long?
How long the employee has been running the proprietorship firm? Whether the same is situate in the same station where your firm is located?
Querist :
Anonymous
(Querist) 29 March 2011
We started using the brand name since August 2010. The proprietorship firm was started in December 2010 or jan 2011. Both operate in west delhi primarily.
