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Opinion Of Registrar Of Trademark Is Must Before Initiating Any Criminal Complaint Under Trademarks Act 1999

What would be fate of criminal complaint filed by a complainant before the Police authority under the provisions of Trademarks Act 1999, in case prior to filing of said complaint , no opinion of Trademarks has not been taken? This article deals with this subject.

Petitioner filed the subject matter Petition seeking quashing of Criminal proceeding initiated by Cyber Crime Cell bearing No. Cyber Crime P.S. Case No.04/201 and FIR lodged subsequent thereto.

This criminal proceeding was initiated on the basis of complainant who alleged that Petitioner , by circulating the alleged video, not only defaming the Hon'ble Chief Minister but also infringing the Trademark and copyright of the Complainant.

The Hon'ble High Court of Jharkhand was pleased to allow the subject matter Petition on the grounds inter alia that provisions of the Trademarks Act 1999 has not been followed in the present case.

The Hon'ble High Court of Jharkhand observed that as per Sub-section (4) of Section 115 of the Trade Marks Act, opinion of the Registrar is required to be obtained before making search and seizure, which has not been followed in the case in hand.

Even the matter was initiated by a Police inspector, which is not the mandate of Section 115 of Trademarks Act 1999.

Section 115 of Trademarks Act 1999 provides as under:
Section 115 in The Trade Marks Act, 1999

115. Cognizance of certain offences and the powers of police officer for search and seizure.
  1. No court shall take cognizance of an offence under section 107 or section 108 or section 109 except on complaint in writing made by the Registrar or any officer authorized by him in writing:

    Provided that in relation to clause (c) of sub-section (1) of section 107, a court shall take cognizance of an offence on the basis of a certificate issued by the Registrar to the effect that a registered trade mark has been represented as registered in respect of any goods or services in respect of which it is not in fact registered.
  2. No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the first class shall try an offence under this Act.
  3. The offences under section 103 or section 104 or section 105 shall be cognizable.
  4. Any police officer not below the rank of deputy superintendent of police or equivalent, may, if he is satisfied that any of the offenses referred to in sub-section (3) has been, is being, or is likely to be, committed, search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offence.

    Wherever found, and all the articles so seized shall, as soon as practicable, be produced before a Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be: Provided that the police officer, before making any search and seizure, shall obtain the opinion of the Registrar on facts involved in the offence relating to trade mark and shall abide by the opinion so obtained.

Section 115(4) of Trademarks Act 1999 takes care of situation where criminal proceeding in relation to violation of Trademarks Act 1999 can be imitated.

But there are two conditions , which must be fulfilled.

First condition is that before initiating any criminal proceeding under the Trade Marks Act 1999, the Opinion of Registrar of Trademark is must.

The second condition is that any police officer not below the rank of deputy superintendent of police or equivalent thereof is entitled to entertain such request.

In a case like the present one , as the procedure laid down in Section 115(4) of the Trade Marks was not followed , the criminal proceeding initiated in violation of Section 115 of Trademarks Act 1999 was rightly quashed.

The idea behind making opinion of registrar of Trademark mandatory is that police authorities are not supposed to have requisite expertise to deciding as to what the offending marks.

The Registrar of Trademarks is regarded as expert as to decide the similarly of trademarks in question.

Case Law Discussed:
Case Title: Sarabpreet Singh Vs State Of Jharkhand
Date Of Judgment: 22.07.2022
Case: Cr.M.P. 1514 Of 2019
Name Of Hon'ble Court: High Court Of Jharkhand
Name Of Hon'ble Judge: The Hon'ble Justice Sanjay Kuamar Dwivedi

Written By: Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi
Email: [email protected], Ph no: 9990389539

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