Enforcement of Intellectual Property Rights In India Through Criminal Measres

2.  Laws relating to Trade Marks / Brands (Trade Marks Act,
1999)
 Laws relating to Copyright (Copyright Act, 1957) Artistic
Work, Literary Work, Audio Video Records and Software
 Laws relating to Patents (The Patent Act, 1970)

3.  Laws relating to Industrial Designs
(Designs Act, 2000)
 Laws relating to Geographical Indications. The geographical
Indications of (Registration and Protection) Act, 1999
 Laws relating to Internet, Web and Information Technology
(Information Technology Act, 2000)
 Domain Names

4. ◦ Civil
 Infringement
 Passing off
◦ Criminal

5.  Statues Invoked for Criminal Action
◦ Sec. 103 / 104
 Trade Marks Act, 1999
◦ Sec. 63 and 64
 Copyright Act, 1957
◦ Sec. 420
 India Penal Code
◦ Sec. 91/93
 Code of Criminal Procedure

6.  Falsification of Trademarks / Infringement of
copyright is a cognizable offence
 A complaint may be filed before a Magistrate; OR
 Police can register an FIR and prosecute directly;
(statutory requirement to obtain the Registrar’s
approval).
 Registration is not a requirement.
 Seizure, forfeiture and destruction of
infringing goods/ material for placing
before the Magistrate

7.  Trademark
◦ Offences are punishable with
◦ imprisonment up to 3 years and
◦ fine up to INR 2,00,000/-
◦ minimum term of imprisonment shall not
be less than 6 months
 Copyright
◦ Offences are punishable with minimum
sentence of imprisonment of 6 months
which my extend up to 3 years
◦ and minimum fine of INR 50,000 which
◦ may extend up to INR 2,00,000.

8.  Curtail piracy and protection of computer programs,
special provisions have been made
◦ Any person who knowingly uses a pirated copy of
a computer programs is also liable to be imprisoned
for a term which shall not be less than seven days
but which may extend to three years and with fine
which shall not be less than INR 50,000 but which
may extend to INR 2,00,000.

9.  Copyright infringement is a cognizable offence, which
means that police on the complaint of a complainant can
directly initiate criminal prosecution by lodging a First
Information Report (FIR), investigate, search and seize
the infringing goods from known and unknown offenders
and arrest the offenders.
 Enhanced penalty on subsequent convictions.

10.  Criminal Complaint in the Court of competent jurisdiction;
 Pre summoning Evidence, for satisfying the court on the basis
of the evidence placed on record, that the allegations by
complainant are prima facie maintainable;
 Issue of General/ specific Search and Seizure Warrants, along
with directions to police; Raid / Search & Seizure by Police
 Investigation and arrest (if necessary) of accused persons;
 Arguments;
 Summons / Warrants against accused persons;
 Accused Appear and seek bail;
 Framing of charges, after notice of allegations;
 Trial
 Onus of proof is on the complainant

11.  Special cells for copyright enforcement have so
far been set up in 23 States and Union Territories,
◦ i.e. Andhra Pradesh, Assam,
◦ Andaman and Nicobar Islands, Chandigarh,
◦ Dadra and Nagar Haveli, Daman and Diu,
◦ Delhi, Goa, Gujarat, Haryana, Himachal Pradesh,
◦ J&K, Karnataka, Kerala, Madhya Pradesh,
◦ Meghalaya, Orissa, Pondicherry, Punjab,
◦ Sikkim, Tamil Nadu, Tripura and West Bengal.
 States have also been advised to designate a nodal officer for copyright
enforcement to facilitate easy interaction by copyright industry organizations
and copyright owners.

12.  S.64 of the Copyright Act
authorizes a police officer,
not below the rank of a sub-inspector
◦ to seize without a warrant,
all copies of work,
◦ and all plates used for the purpose
of making infringing copies of work

13.  S.115 of the Trademark Act
allows police officer not
below the rank of deputy
◦ superintendent of police or equivalent
◦ to search and seize without warrant the goods,
◦ die, block, machine, plate, other instruments
◦ or things involved in committing the offence,
◦ wherever found.

14.  has a deterrent
effect on a potential infringer
 instills fear of arrest in the
minds of persistent infringers
 it is at no cost to the aggrieved party

15. Vaish Associates Advocates
New Delhi Mumbai Gurgaon Bengaluruǀ ǀ ǀ
Celebrating 40 years of professional excellence
IPR & IT Laws Practice Division
Ist Floor Mohan Dev Building 13, Tolstoy Marg New Delhi 110001 (India)ǀ ǀ ǀ
Phone: +91 11 49292532 (Direct)
Mobile: +91 9810081079
Phone: +91 11 49292525 (Board)
Fax: +91 11 23320484
www.vaishlaw.com
email:- vpdalmia@vaishlaw.com
Intellectual Property & Information Technology Laws Division