The document outlines the legal remedies available in India for the exploitation of intellectual property rights (IPR), which are protected under various statutes including the Trade Marks Act, Copyright Act, Patents Act, and Designs Act. It emphasizes that IPR can be subject to both civil and criminal penalties, including provisions for criminal breach of trust under the Indian Penal Code. Additionally, it discusses case law that establishes the definition of property to include intellectual property and the legal implications of misappropriation and infringement.

1. Remedies against exploitation of Intellectual Property
The intellectual property is protected by the sanctions of law and a right to secure
one’s intellectual property is a statutory right1
. It is well known principle of law that
where there is a right there is a remedy, which is derived from the maxim ubi jus ibi
remedium. India has four statutes protecting the infringement of intellectual property
of a person, namely, (a) The Trade Marks Act, 1999, (b) The Copyright Act, 1957, (c)
The Patents Act, 1970 and (d) The Designs Act 2000. Not limited to remedies
available in those statutes, an aggrieved person may have recourse to the provisions
in Section 479 to 489 Indian Penal Code, 1860 and Section 38 of the Specific Relief
Act, 1963.
IPR infringement in case through Criminal Breach of trust.
The essential ingredients of Criminal breach of trust are under section 4052
:
• The accused must be entrusted with property or dominion over it.
• He must have dishonestly misappropriated the property or converted it to his
own use or disposed of it in violation of such trust
In order to establish criminal breach of trust, the most important aspect here is to
prove , first, wether term Property used n intllectual property falls in the ambit of
normal property in general sense and dominion over it. And second, misapropriation,
conversion etc. leading to violation of such trust.
1
Significance
Of
Remedies
Available
In
Intellectual
Property
Rights;
Author:
Abhinav
Gaur;
Http://Lex-­‐Warrier.In/2013/05/Significance-­‐Of-­‐Remedies-­‐Available-­‐In-­‐Intellectual-­‐Property-­‐
Rights/#Identifier_3_3584
2
405.
Criminal
Breach
Of
Trust.—Whoever,
Being
In
Any
Manner
Entrusted
With
Property,
Or
With
Any
Dominion
Over
Property,
Dishonestly
Misappropriates
Or
Converts
To
His
Own
Use
That
Property,
Or
Dishonestly
Uses
Or
Disposes
Of
That
Property
In
Violation
Of
Any
Direction
Of
Law
Prescribing
The
Mode
In
Which
Such
Trust
Is
To
Be
Discharged,
Or
Of
Any
Legal
Contract,
Express
Or
Implied,
Which
He
Has
Made
Touching
The
Discharge
Of
Such
Trust,
Or
Wilfully
Suffers
Any
Other
Person
So
To
Do,
Commits
“Criminal
Breach
Of
Trust”

2. Property:
The famous international author on property Bentham expresses the inter-relationship
between law and property in his book Theory of Legislation as3
:
Property and law are born together, and die together. Before laws were made there
was no property; take away laws, and property ceases.
Intellectual property rights are like any other property right4
. Rights allow creators,
or owners, of patents, trademarks or copyrighted works to benefit from their own
work or investment in a creation.
The Bombay High Court in the case of Commissioner of Income- tax v. Taw Services
Ltd. (MANU/MH/0139/1979: 122 ITR 594) held that the word "property" used in
section 2(14) of the Act is a word of the widest amplitude and the definition has re-
emphasized this by the use of the words "of any kind", Any right which can be
called property will be included in the definition of "capital asset"5
Authority for Advance Ruling in the case of foster's Australia Ltd. (302 ITR 289)6
held that "Property of any kind" undoubtedly includes intellectual property which
is but species of intangible property. Trade mark. Brand, goodwill, technical know-
how relating to the manufacture of goods would all qualify to be treated as capital
assets within the meaning of section 2(14) (a)7
of the Act.
In a Supreme Court judgment definition in a 405 does not restrict the property to
movables or immoveable alone. In the case of R K Dalmia vs Delhi Administration8
,
the Supreme Court held that:
1. The word ‘property’ is used in the Code in a much wider sense than the
expression ‘moveable property’.
2. There is no good reason to restrict the meaning of the word ‘property’ to
moveable property only, when it is used without any qualification in s 405.
3
Real
Property
Vs
Intellectual
Property
By
Dr.
Sudhir,
Http://Www.Altacit.Com/Wp-­‐
Content/Uploads/2015/03/12-­‐REAL-­‐PROPERTY-­‐Vs-­‐INTELLECTUAL-­‐PROPERTY.Pdf
4
What
Is
IPR?
By
World
Intellectual
Property
Organization;
Http://Www.Wipo.Int/Edocs/Pubdocs/En/Intproperty/450/Wipo_Pub_450.Pdf
5
Commissioner
Of
Income
Tax,
Bombay
City
I
Vs.
Tata
Services
Ltd.
(16.01.1979
-­‐
BOMHC)
6
Discussed
In
Case
Of
:
Mylan
Laboratories
Ltd.
Vs.
Asst.
Commissioner
Of
Income
Tax
MANU/IH/0015/2015
7
14(1)(A)
Property
Of
Any
Kind
Held
By
An
Assessee,
Whether
Or
Not
Connected
With
His
Business
Or
Profession;
8
AIR
1962
SC
1821

3. 3. Whether the offence defined in a particular section of IPC can be committed
in respect of any particular kind of property, will depend not on the
interpretation of the word ‘property’ but on the fact whether that particular
kind of property can be subject to the acts covered by that section.
The word ‘dominion’ connotes control over the property. In Shivnatrayan vs State of
Maharashtra9
, it was held that a director of a company was in the position of a trustee
and being a trustee of the assets, which has come into his hand, he had dominion and
control over the same.
Misapropriation, Conversion etc. Leading To Violation Of Such Trust10
:
In case of InPhase Power Technologies Ltd. V. ABB India11
, InPhase is a private
limited Company formed by the former employees of ABB India (hereinafter referred
to as "ABB" or "the Respondents"), holding significant posts at the Company.
InPhase alleged to
• Misappropriated information for the making of a patented product of ABB
• Consequently infringing ABB's Patent
• Infringed ABBs' trademarks during the marketing, distribution, and sale of
their products.
• Directors of InPhase had formed a competitive establishment ie: InPhase
Power Technologies Ltd. , while they were still employed under ABB India
which was evident inter alia from the use of inphase as the domain names
even before they had resigned.
The Hon'ble High Court of Karnataka held that the contentions made by InPhase were
frivolous as mere few changes in a patented product can be ignored if they do not
significantly change it or its use. The Court also placed reliance upon (Bombay
Dyeing And Manufacturing Co. Ltd. v. Mehar Karan Singh 2010 ) a case12
cited by
ABB India Ltd. wherein it was observed that "a person, who obtained information in
confidence, is not allowed to use it as a "springboard" for activities detrimental to the
9
AIR
1980
SC
439.
10
India:
Springboard
Doctrine
In
India:
Inphase
V.
ABB
India
;
Last
Updated:
11
November
2016
Article
By
Vikrant
Rana
And
Sanchi
Malhotra,
S.S.
Rana
&
Co.
Advocates;
Http://Www.Mondaq.Com/Content/Company.Asp?Article_Id=543270&Company_Id=570
11
Https://Indiankanoon.Org/Doc/137445049/
12
Bombay
Dyeing
And
Manufacturing
Co.
Ltd.
V.
Mehar
Karan
Singh
2010
(112)
Bomlr
3759;
Https://Indiankanoon.Org/Doc/286447/

4. persons who made the confidential communication, it was held that breach of
confidential information depended upon the broad principle of equity that he who
receives information in confidence shall not take unfair advantage of it."
And similarly in case of Jaikrishnadas Manohardas Desai vs State of Bombay, it
was held that dishonest misappropriation or conversion may not ordinarily be a matter
of direct proof, but when it is established that property, is entrusted to a person or he
had dominion over it and he has rendered a false explanation for his failure to account
for it, then an inference of misappropriation with dishonest intent may readily be
made13
.
From above mentioned judgment, it is evident that punishment for infringement in
case of IPR falls with in the ambit of criminal breach of trust (IPC section 405).
The term property fall with in the interpretation of property in general. So, criminal
proceedings in case of infringement can be brought against the person taking said
act (CR, TMA etc.) and IPC.
Relationship between IT act & IPC incase of Copyright infringement
The Information Technology Act, 2000 (“IT Act”) prescribes punishment for ‘cyber
contraventions’ (Section 43 (a) to (h)) and ‘cyber offences’ (Sections 65-74). The
former would include gaining unauthorized access, and downloading or extracting
data stored in computer systems or networks, and may result in civil prosecution. The
latter category covers ‘serious’ offences like tampering with computer source code,
hacking with intent to cause damage, and breach of confidentiality and privacy, all of
which would invite criminal prosecution (the Copyright Act, 1957 like literary,
dramatic, musical, artistic and cinematographic works. It has granted the status of
“literary work” to databases as well, although this is limited only to computer
databases. Therefore copying the computer database, or copying and distributing the
database would amount to infringement of copyright). The offences of theft14
and
13
Criminal
Breach
of
Trust
–
by
Divi
Jain;
http://www.legalserviceindia.com/articles/crbt.htm
14
Section
378,
379
of
IPC

5. misappropriation15
under the IPC are punishable with imprisonment up to three and
two years respectively, with or without fine16
.
General Penal Provision Dealing with infringement of IPR.
1. Criminal Remedies for Trademark:
• Section 482, IPC: Punishment for using false property mark.
• Section 483, IPC: Punishment for counterfeiting a property mark
• Section 484, IPC: Punishment for counterfeiting a mark used by a Public
Servant.
• Section 485, IPC: Punishment for making or possession of any instrument for
counterfeiting a property mark.
• Section 486, IPC: Punishment for selling goods marked with a counterfeit
property mark.
• Section 487, IPC: Punishment for making a false mark upon any receptacle
containing goods.
• Section 488, IPC: Punishment for making use of any such false mark.
• Section 489, IPC: Punishment for tampering with property mark with intent to
cause injury.
2. Criminal Remedies for Copay Rights17
:
The Penal Provisions under the Copyright Act, 1957 are contained in Chapter
XIII of the Act. The punishment for infringing Copyright is contained under
section 63, 65 of the Act and the powers of the Police are contained under
section 64 (1) of the Act. An offence under the Copyright Act is cognizable
and non-bailable. An offence concerning infringement of Copyright is
punishable with an imprisonment of not less than 6 months but which may
extend to three years. The minimum fine under the Act is INR 50,000/-
extendable to INR 2,00,000.
15
IPC,
Section
403
16
LEGAL
ASPECTS
OF
DATA
PROTECTION
;
http://www.majmudarindia.com/pdf/Data%20Protection
17
CRIMINAL
PROSECUTION
FOR
IP
VIOLATIONS
;
Author:
Advocate
Jay
Bhardwaj;
http://www.rkdewan.com/articledetails.php?artid=114