India: Offences Relating to Geographical Indications in India

Last Updated: 28 November 2005
Article by Manisha Singh

In contradistinction with the other forms of Intellectual property, GIs are treated as public property. Consequently, the enforcement mechanisms for registered GIs are rigorous. The Law penalizes falsifying and falsely applying GIs, selling goods to which false GI is applied, false representation that a GI is registered, improper description of the place of business as connected with the GI Registry, falsification of entries in the register.

Falsification or False application of a GI

Falsification with respect to a GI means ‘ the act of making a GI or deceptively similar GI, or changing a genuine GI by alteration, addition, effacement or otherwise, without the consent of the authorised user of the GI’.

False application of GI means ‘ application of a GI or deceptively similar GI to goods/ package containing the goods or use of the package bearing a identical/deceptively similar GI for the purpose of packing, filing or wrapping therein any goods other than the genuine goods of the authorised user of the GI without the consent of authorised user’

Defenses

  1. Invalidity of GI: the accused may plead that the GI with respect to which he is alleged to have committed an offence under the Act is invalid.
  2. Due consent: The accused can plead that the acts alleged to have been committed by him were committed after obtaining consent of the proprietor. However the burden of proving the consent shall lie on him.
  3. Absence of Mens Rea or intention to defraud: As guilty mind is an essential ingredient of the offence, the accused can plead that he did not intend to defraud the consumers. Unlike the other criminal cases, the accused has to establish his innocence. The prosecution is not required to prove the guilt of the accused beyond all reasonable doubts.
  4. Reasonable care and ignorance: The accused can plead that he had taken all the necessary precautions against committing the offence and had no reasons to suspect that the GI was not genuine or that an offence has been committed in respect of the goods.
  5. Disclosure of Information: The accused can also plead that he cooperated with the prosecutor by providing him all the information in his possession regarding the person from whom he obtained the goods or things.
  6. Course of employment: The accused can plead that he was in the ordinary course of business, employed on behalf of other persons to apply GI, or as the case may be, to make dies, blocks, machines, plates or other instruments for making or being used in the making of the GI. Also That he was not interested in the goods or other things by way of profit or commission depending on the sale of such goods.

Quantum of Punishment

Falsification or false application of a GI is punishable with a minimum imprisonment of six months, which may extend to three years and with a minimum fine of fifty thousand that may extend to two lakh rupees.

Selling goods to which False Geographical Indication is applied

Under the second category of offence of selling, letting for hire, exposing to sale or hiring and possession of goods bearing the false GI is covered.

Defenses available

The accused can raise the following statutory defenses:

  1. Invalidity of the GI: the accused may plead that the GI with respect to which he is alleged to have committed an offence under the Act is invalid.
  2. Reasonable care and ignorance: The accused can plead that he had taken all the necessary precautions against committing the offence and had no reasons to suspect that the GI was not genuine or that an offence has been committed in respect of the goods.
  3. Disclosure of Information: The accused can also plead that he cooperated with the prosecutor by providing him all the information in his possession regarding the person from whom he obtained the goods or things
  4. Lack of Guilt: The accused can plead that he had acted innocently

Quantum of Punishment

The offence under this class shall be punishable with a minimum imprisonment of 6 months that may be extended to 2 years and a minimum fine of fifty thousand rupees that may be extended to two lakh rupees.

Enhanced Penalty: Every second and subsequent act that falls in the above mentioned classes of offences shall be punished with a minimum imprisonment of 1 year that may extend to 3 years and a minimum fine of 1lakh that may extend to 2 lakh rupees.

False representation with respect to the GI

Following representation with respect to GIs constitute offences under the Act

  1. Misrepresentation as to Registration: representing an unregistered GI as a registered GI
  2. Misrepresentation as to the goods specification: representing that a GI is registered in respect of any goods in respect of which it is not registered.
  3. Misrepresentation as to the exclusive use: representing that registration of the GI gives the exclusive right of use, which the registration actually does not confer.

Quantum of Punishment

There is no minimum punishment or minimum fine for the offence under this class. However, the maximum punishment in terms of imprisonment is three years.

These offences not only entail imprisonment, fine but also forfeiture of the infringing goods. In order to facilitate the quick arrest of the offenders, above-mentioned classes of offences have been made cognizable under the Act. The prosecution for these offences cannot be launched after a period of three years from the date of commission of the offence or two years after the discovery of the offence by the prosecutor which ever expires earlier.

Jurisdiction

The offences under the Act cannot be tried in a Court inferior to that of the Metropolitan Magistrate or the Magistrate first Class.

Special procedure where the invalidity of the GI is pleaded

A different procedure is adopted where the accused pleads that the GI with respect to which he is alleged to have committed the offence is invalid. In such cases, if the Court is satisfied that the defense is prima facie tenable, it shall adjourn the matter for a period of three months to be counted from the date on which such a plea is recorded.

The period of three months is granted for the purpose of enabling the accused to institute rectification proceedings before the Appellate Board. The criminal proceedings are stayed till the disposal of the application for rectification. Where the accused does not apply for the rectification within the period of three months for such further period as may be granted by the Court, the Court shall proceed with the matter as if the registration is valid. Where before the institution of the criminal case, the application for the rectification of the registration of the GI on the ground of invalidity is pending; the Court shall stay the proceedings unless the rectification application is disposed of.

Comments

The Penal provision should have a deterrent effect on those who produce counterfeit goods and earns profits by deceiving the gullible consumers. As GIs represent the collective interest of the producers and have immense economic value, strict application of the penal provisions is warranted.

© Lex Orbis 2005

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.

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