Fake or Counterfeit Goods
Counterfeit goods or commonly referred to as fake goods, in simple terms means a copy or imitation of something. Counterfeiting of goods is becoming a big concern for India at the present moment, as there are numerous sellers in the country who are involved in selling counterfeited goods. These goods are most of the times sold at throw away prices and deceive the public at large. Sale of many Counterfeit products is also being through e-commerce websites and many such products are also sold in smaller shops or at streets as street shopping attracts a large number of young crowd. Due to the same, goodwill & reputation of the brand selling the original product suffers and brands starts losing revenue which leads to irreparable damage to their businesses.
Curbing Online Counterfeiting in India- Need of the hour
India has no specific Act which specifically deals with counterfeiting of products. However, the Intellectual Property Law in India envisages provisions which prohibit Counterfeiting as counterfeiting is directly linked with the IPR rights of the aggrieved brand/individual. As counterfeiting effects the business directly, it is advisable to initiate a criminal action with the aim to enable police to conduct raids and seize the counterfeited products. The seizure of counterfeit products would help the aggrieved individual/brand to maintain its goodwill/ reputation and prevent further loss of revenue.
Remedies under the Copyright Act, 1957 against fake goods
The Copyright Act, 1957 provides for both Civil and Criminal remedies in case of a copyright infringement. Copyright subsists in literary, dramatic, musical and artistic works, computer programs, films and sound recordings. In case, there is illegal sale of a work wherein copyright subsists, the aggrieved party can initiate criminal proceedings against the person selling the counterfeit work. Section 63 of the Copyright Act, 1957, makes infringement or abetment of infringement of a copyright in a work a criminal offence and the punishment for the same is imprisonment from 6 months to three years along with fine. Offence under Section 63 of the Copyright Act, 1957 is a non-cognizable offence and the aggrieved party may first have to get the FIR registered under Section 63 of the Copyright Act, 1957 at the Police Station having competent jurisdiction to try the matter.
Section 64 of the Copyright Act, 1957 deals with the power of the police to seize infringing copies. As per the section, a police officer, not below the rank of sub-inspector, upon satisfaction that an offence under Section 63 of the Copyright Act has been committed or is likely to commit, has power to conduct a raid and seize without warrant, all copies of the work. The infringing copies upon seizure and produced before the Learned Magistrate that is trying the case. That the Court after the trial under Section 63 of the Act is concluded, may direct, tfor disposal of the infringing copies. It must be noted that the trial shall be governed by the provisions of the Code of Criminal Procedure, 1973 which provides the procedure to be followed in criminal matters. We have a dedicated team which has expertise in Code of Criminal Procedure, 1973 and have dealt with a number of criminal matters. In case of a query upon the same or to know about the detailed procedure for preferring a criminal complaint, please feel free to reach out to us on the email address provided below.
Remedies under the Trademark Act, 1999 against fake goods
In case of trademark infringement, a registered proprietor has a choice to initiate criminal action against the infringer. Section 104 of the Act provides that a person who sells, lets for hire, or exposes for sale, or hires or has in his possession for sale, goods or things, or provides or hires services, to which false trademark or false trade description is applied shall be punished for a term between 6 months to three years and shall also be liable to pay fine. Criminal Action can be initiated by registering FIR against the accused person under various provisions of the Trade Marks Act, 1999. There is a chance that the Police may refuse to register FIR under the Trademarks Act, 1999 and may ask the aggrieved party to settle the matter without filing a case, upon a refusal of police office to register FIR, the aggrieved person has an option for preferring a complaint under Section 156 (3) of the Criminal Code of Procedure, 1973 before a Magistrate and obtain an order of Court for registration of FIR. Once the FIR, is registered the procedure mentioned in the Criminal Code of Procedure, 1908 for investigation and Trial is followed by the Police and the Courts.
Section 115(2) of the Trade Marks Act, 1999, provides that the offences under the Act shall not be tried by a Court below that of Metropolitan Magistrate or Judicial Magistrate of the First Class. Further Section 115(3) of the Act provides that offence under Section 103, 104 & 105 are cognizable offences which means that a police officer has a power to arrest without warrant and start the investigation without permission of the Court. Section 115(4) of the Act gives power to Deputy Superintendent of police or police officer of an equivalent rank, upon satisfaction that an offence under Section 103, 104 or 105 has been or is being committed, may conduct a search & may also seize without warrant the counterfeited products. The counterfeited products seized during the search has to be produced before the Magistrate before whom Trial is going on.
USTR releases Notorious Markets List for 2021 for Counterfeiting