Offences and penalties under the trademarks act (Sections 101 and 102)

Offences and penalties under the trademarks act (Sections 101 and 102)

Sections 101 and 102 of the Act prescribe the nature of the offences. There are certain criminal offences relating to trademarks, trade description etc., which are punishable with imprisonment, fine or both.

Falsifying a trade mark to goods or services, falsely applying a trade mark to goods and services; making or possessing instruments for falsifying trademarks; applying false trade description to goods applying false indication of country origin; tampering with an indication of origin already applied to goods; causing any of the above acts; selling goods or possessing or exposing for sale of goods falsely marked; removing piece goods, cotton yarn and threads from the factory before stamping thereon certain particulars like length, weight, counts, etc.; falsely representing a trade mark as registered; improperly describing a place of business as connected with the Trade Mark office; falsification of entries in the register; are the offences which are punishable under the Act.

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A person making a-registered trade mark or a deceptively similar mark is deemed to falsify a trade mark if he is doing it without the consent of the proprietor of the trade mark. Any alteration, addition, effacement of a genuine trade mark also amounts to its falsification.

A person who, without authorization, applies registered trade mark or a deceptively similar mark to goods or services or any package containing goods is deemed to falsely apply the genuine trade mark.

If any person uses any package bearing a mark which is identical with or deceptively similar to the registered trade mark for the purpose of packing, filling or wrapping any goods other than the genuine goods of the proprietor of the trade mark he is guilty of falsely applying the trade mark.

Section 103 of the Act prescribes about falsification of trade mark, that a person is said to falsify a trade mark if he makes a trade mark without the assent of the proprietor. In a case of falsification of trade mark it is necessary to prove the existence of a genuine trade mark, whether registered or unregistered, belonging to some person.

To constitute falsification it is sufficient if the offender makes a mark deceptively similar to the genuine trade mark, or if he carries out alterations, additions or effacement in the genuine trade mark, for which the punishment is imprisonment which may extend from six months to three years and fine which may vary from fifty thousand to two lakhs.

If any person makes, disposes of, or has in his possession, instruments like die, block, machine or plate for the purpose of falsifying a trade mark, he is punishable with imprisonment and fine.

The quantum of punishment will be the same as for the other offences. Punishment may be avoided if the offender is able to prove that he had acted without intent to defraud.

Section 108 prescribes penalty for improperly describing a place ₀f business as connected with the trade marks office is imprisonment extending to two years or with fine or with both.

Section 112 prescribes about the exemption from punishment. In committing an offence apart from the trader who is interested in making profit by the Commission of the offence, other persons like printers and block makers may be involved who have no intention to commit the offence but who are employed by the trader to manufacture the offending labels or other instruments for the commission of the offence.

If such a person is accused of an offence he will be acquitted if he proves that he is a person who in the ordinary course of his business is employed by other person to apply trademarks or trade descriptions, or to make dies, blocks or other instruments for making trademarks; and in particular case he was so employed and was not interested in the goods or other things by way of profit or commission depending upon the sale of goods; and that he had taken all reasonable precautions against committing the offences the offences charged and that he had at the time of commission of the alleged offence no reason to suspect the genuineness of the trade mark or trade description.

Offence under the Act is committed if a person makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying or of being used for falsifying a trade mark:

(i) Applies any false trade description to goods or services, or

(ii) Applies a false indication of the country or place where the goods were produced or name and address of the manufacturer, or of the person for whom they are produced.

(iii) Tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied.

The above mentioned offences shall be punishable with imprisonment for a term of minimum of six months but which may extend to three years and with a minimum fine of fifty thousand rupees but which may extend to two lakhs rupees.

For adequate and special reasons mentioned in the judgment, the court may impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.

Penalty for selling goods or providing services to which false trade mark or false trade description is applied is punishable with imprisonment for a minimum term of six months.

Enhanced penalty can be imposed on second or subsequent conviction. Such offences shall be punishable with imprisonment for term between one to three years and with fine between one lakhs rupees to two lakhs rupees.

A person, who represents an unregistered trade mark as a registered trade mark, shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

The penalty for falsification of entries in the register is imprisonment for a term, which may extend to two years, or a fine, or both.

The use of words, which may falsely suggest that a person’s place of business is officially connected with the trade mark office, attracts imprisonment for a term up to two years or a fine or both.

If the person committing an offence under this Act is a company, the company as well as every person in charge of, and responsible to, the company for the conduct of its business at the time of the commission of the offence shall be deemed to be guilty of the offence.

A company means any corporate body and includes a firm or other association of individuals. Abetment of any offence is punishable as if the abettor himself committed that offence.

Offences relating to trademarks and trade description are not cognizable. They are bail able but non-compoundable. Investigations into such offences cannot be effectively carried out without the assistance of the police force.

Thus in making a complaint where the complainant cannot give particulars of the persons who committed the offence or the dates and places of the commission of offence, the Magistrate is bound to cause an inquiry to be made by the police, as otherwise the offences being non-cognizable, the police could not investigate into them without being authorized by a Magistrate, thereby rendering the complainant helpless.

Certain police officers can in certain circumstances of their own accord make search and seize without warrant the offending goods and other materials under section 115(4) from the suspected place.