If any brand has attained its popularity and genuinity in the market, then it is important for that brand ti commercially protect it from being misused by any thor parties. Therefore Intellectual Property protects these brands from being misused.
But many times the original brand’s replica or duplicate products are sold in the market at an inferior quality than of the original product which created confusion amongst the potential consumers. Counterfeit products tend to have fake logos and brands in it. Therefore Trademarks and Copyright Act is there to protect the original brand from being commercially exploited.
Trademark Act, 1999 and Copyright Act, 1957 provides for remedies and actions against the Intellectual property rights.
Protection Under Trademark Act, 1999
Section 103 and 04 of Trademarks Act, 1999 provides imprisonment for term not less than six months which may be extended to three years with fine up to Rs. 2 Lakh if anyone is found for false application of Trademark and selling of goods of which false trademark has been applied. Section 115 of the act empowers police officials for the process of search and seizure of any such products which class for action against infringement of the Trademark. For doing such raids and seizure of products police officials must obtain a certificate of opinion from the registrar. However, the registrar has full discretion to decide on the same.
For the purpose of taking fast forward action against the infringement, the proprietor should opt for the criminal action. The proprietor should file a criminal complaint under section 156 of the code of criminal procedure. Sub section 3 of section 156 provides that if any police official refuses to lodge an FIR or a criminal complaint, the aggrieved party can file a complaint before the Magistrate, procedure w.r.t. Which is laid down unders section 190 of the code of criminal procedure, 1973.
Search warrant can be obtained by directly approaching the magistrate court, the procedure of which has been laid down under section 93 of the Code of Criminal Procedure, 1973.
Many times the identity of the infringer is not known therefore, according to section 93 and 94 of the Crpc one can request for initiation of a search and seizure proceedings against known and unknown persons.
Protection under Copyright Act, 1957
Logos and Designs, which are used as brand identities for representing businesses, are protected as trademark. If they are original artworks that have an element of creativity, they are also entitled to be protected as copyrights as well.
- If there is any infringement of the mark, then the proprietor can take action under section 63 of Copyright Act, 1957 which contains the provision of punishment for six months of imprisonment which can be extended upto three years with a fine minimum of fifty thousand which can be extended to three lakh.
- The main advantage of filing a complaint under section 64 of copyright act is that a police officer not below the rank of sub-inspector has the power to seize without warrant, infringing copies of the work. The infringement of copyright was decided as a cognizable offense.
- In case of cognizable offenses, the investigating officer has the power to make an arrest and start the investigation without a court order in accordance with section 156(3) of crpc. The proprietor whose mark is being infringed could file a criminal complaint under charges of section 420 IPC along with section 63 of Copyright Act. The provision of section 420 IPC precisely talks about cheating by way of false representation of property to some other person.
Civil remedies in case of violation of Trademark
The proprietor is also open to file civil suits simultaneously along with the criminal complaint. The advantage of doing this is that by initiating a criminal complaint, seizure of counterfeit products can be done while a civil suit helps to restrict the sale of the same while the matter is still pending in the court.
Order of Injunction from Court
For the purpose of stopping manufacture of counterfeit products from its sale. The proprietor can adopt civil remedies where the court can issue an order of injunction in which a person is required to perform or restrained from performing a particular act. This helps the proprietor to obtain an order from court for using counterfeit products to sell unless the matter is disposed off from the court. The general rules governing the grant of an injunction are contained in section 36 to 42 of the Indian Specific Relief Act, 1963 and order XXXIX Rules 1 and 2 and section 151 of the code of Civil procedure, 1908.
Any proprietor whose trademark has been ifibged b the sale of counterfeit products, the said person can claim compensation from the opposite party against the profit made out from the sale of the counterfeit product through unauthorized use of trademark belonging to the proprietor.