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IPR Enforcement in India through Criminal Measures - By Vijay Pal Dalmia

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Enforcement of Intellectual Property Rights In India Through Criminal Measres

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IPR Enforcement in India through Criminal Measures - By Vijay Pal Dalmia

  1. 1.  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)
  2. 2.  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
  3. 3. ◦ Civil  Infringement  Passing off ◦ Criminal
  4. 4.  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
  5. 5.  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
  6. 6.  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.
  7. 7.  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.
  8. 8.  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.
  9. 9.  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
  10. 10.  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.
  11. 11.  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
  12. 12.  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.
  13. 13.  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
  14. 14.  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

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