India: A Trademark Falsified Or Falsely Applied Is A Cognizable Offence

Last Updated: 29 August 2012
Article by Abhai Pandey

The Trade Marks Act is probably the most important piece of legislation when it comes to combating counterfeit goods. It empowers the authorities to take action to prevent the infringement of both registered and unregistered trademarks and makes the falsification of a trademark and the application of a false description to goods or services a punishable offence. The legislation also empowers courts to grant interim injunction orders and restrain a defendant from disposing of its assets. In addition, it authorizes the police to enter premises in order to search for and seize goods involved in committing an offence. It also establishes prison terms and fines for infringers.

The falsification of trademarks related to food and drugs is a cognizable offence, which the police can investigate without permission from a court. Tata Tea Ltd (Respondent/complainant) lodged a complaint with the Assistant Commissioner of Police (Crime Branch) IPR Section, Delhi against unknown persons for falsely applying its mark TATA TEA registered and used since 1988. The police conducted a raid and pursuant to that a first information report (FIR) was registered in which the complainant alleged that the recovered tea pouches contains spurious tea and has the mark 'Tata Tea' falsely applied to them. The police concluded its investigation and charge sheet was filed, however the Additional Chief Metropolitan Magistrate (ACMM) held that the whole proceeding from investigation stood vitiated as police did not seek any permission from the court to conduct investigation. Rajesh Garg (Petitioner), as a result, was discharged of all allegations in the FIR.

The Respondent preferred a criminal revision petition challenging the order of the ACMM. The Additional Sessions Judge (ASJ) held the proceeding to be legal and valid while setting aside the ACMM's order on the ground that offences relating to trademark infringement when committed qua food products are cognizable offences and therefore can be initiated by the police by filing a charge sheet under S.179 Cr.P.C. after registering a FIR. As regards whether "Tea" is a food item, the definition of "food" under Prevention of Food Adulteration Act, 1954 (PFA Act) was relied upon to conclude that "Tea" is a food article.

The Petitioner sought quashing of the ASJ's order (Rajesh Garg Vs Tata Tea Ltd & Anr Crl. Rev. P. No. 688/2003 and Crl. M.A. 1221/2003; Delhi High Court) inter alia on the ground that "Tea" is not "Food" within the provisions, under Trademarks law, providing penalty for applying false trademarks and selling goods to which a false trademark is applied. The Court reasoned that "Tea" is a food item for purposes of the PFA Act and merely relying on an instance (S. Samuel, M.D., Harrisons Malayalam and Anr. v. UOI and Ors. 2003(9) SCALE 442) considering "Tea" not to be food for the purposes of the Essential Commodities Act, 1955, is no ground to conclude that "Tea" will not qualify as a food for the purposes of penalizing falsification of trademarks under Trademarks law.

The Court dismissed the petition finding no merit in it and categorically pointed out that this is a case of alleged packing of counterfeit tea, which may have an adverse effect on its consumers due to its poor quality, and also that such infringement of trademarks with respect to a food article makes this case fit to be interfered with the ACMM's order in the interest of public policy.

The complaint by Tata Tea Ltd was filed under Sections 76 and 78 of the Trade and Merchandise Marks Act, 1958. The provisions are penal in nature and provides penalty for applying false marks and selling goods to which a false trademark is applied respectively. The sections also have a proviso under which when the offence is in relation to "food" as defined in the PFA Act then there is an enhancement in punishment (an extra year of imprisonment). The current law, The Trade Marks Act 1999 (in force since 15th September 2003), has these provisions under sections 103 and 104 without the proviso of the earlier legislation however the penalty has been more concretized i.e. the actions are punishable with imprisonment for a term not less than six months which may extend to three years with fine not less than fifty thousand rupees which may extend to two lakh rupees (0.2 million).

Under the Trade Marks Act, police officers those with the rank of Deputy Superintendent of Police and above have the power to carry out search & seizure operations for infringing goods if they are satisfied that a falsification of a trademark has been, is being, or is likely to be committed. The police officer, before making any search and seizure, shall obtain the opinion of the Registrar of Trade Marks on facts involved in the offence relating to trademark and shall abide by the opinion. A petition filed under S. 482 Cr.P.C., (Anil Kumar Vs. State of Punjab & Anr. Crl. Misc. No. M-9229 of 2009; High Court of Punjab & Haryana), for quashing of a FIR registered against selling fake shoes and chappals (slippers) of established brands Adidas and Reebok at original price, was disposed by quashing the FIR by the Court in view of S. 115 of the Trade Marks Act, 1999 postulating on Cognizance of certain offences and the powers of police officer for search and seizure.

The Court held that –

As per sub clause (4) of S. 115 of the Act, no police officer below the rank of Deputy Superintendent of Police could search and seize goods regarding offence under Sections 103, 104 and 105. Secondly, as per the proviso, the said police officer will have to obtain opinion of the Registrar of Trade Marks on facts involved in the offence relating to Trade Marks Act 1999 and shall abide by the opinion before such search and seizure is carried out. In the present case, admittedly the Sub Inspector has done the search and seizure without taking any opinion from the Registrar. Hence, the proceedings are vitiated. The word "shall" in the proviso is indication of the fact that the provision is indeed mandatory. Moreover, the Officer not below the rank of Deputy Superintendent of Police could have only investigated the said offences.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.