By Heena Thalesar, Advocate
firstname.lastname@example.org | March 27, 2021
WHAT IS INFRINGEMENT?
Infringement refers to the unauthorized use of material that is protected under intellectual property laws. This usually refers to instances of copyright infringement, such as when artistic works, music or literary works are used without the creator’s permission. However, infringement can also lead to a legal dispute. Proving infringement usually requires that there is a subsisting copyright, trademark or patent. It also requires proof that the defendant uses the material, artistic work or invention without notifying the person who has ownership rights in the material.
The Bombay High Court in ABA NO.336 of 2021 has held that offences of infringement of copyright under the Copyright Act, 1957 and of falsely applying any trademark under the Trademarks Act, 1999 are non-bailable offence as the punishment attracted is up to three years. The legal question was raised as to whether these offences were bailable or non-bailable. The first point which the High Court considered was whether offences under Ssection 63 of The Copyright Act,1957 (i.e. infringement of copyright) and Section 103 of Trademark Act,1999 (i.e. infringement of trademark) which are not there in the Indian Penal Code,1860 but attract up to three years imprisonment. The Court held both the offenses to be “non-bailable”.
FACTS OF THE CASE:-
In Piyush Subhashbhai Ranipa vs. The State of Maharashtra (ABA NO.336 of 2021), the Applicant was seeking anticipatory bail in connection with C.R.No. 865 of 2020 registered with Mohol Police Station, Solapur, District Solapur, under sections 418, 465, 482, 483, 485, 486, 488 r/w. 34 of the Indian Penal Code (for short ‘IPC’) and under section 63 of the Copyright Act, 1957. Subsequently section 103 of the Trademarks Act, 1999 is also applied. The First Information Report (F.I.R.) was lodged by one Mr. Prakash Gore. He was a Zonal Manager of Jain Irrigation System. His company received complaints that substandard goods in the name of their company were sold in the market. The informant received secret information that one Eicher truck bearing No. GJ03/BV-9840 was carrying goods in the name of the complainant’s company which actually were not genuine goods. That vehicle had started from Gujarat and was going towards Karnataka. On 19/12/2020, at about 4:00p.m. the informant and his associates saw that vehicle. They made inquiries with the driver Jeevan about the goods. He informed that the goods were loaded from Tera-flow Company Ribda and he was going to Chadchan. He showed invoices. The invoice mentioned four different HDPE pipes worth Rs.94,485/-. The informant physically saw those goods. He saw that some goods were bearing mark ‘Jain HDPE’ bearing stamp of CML (Certificate of Manufacturing License) 7018761. That stamp was a forged stamp. The goods were being transported and sold using fake trademark and, therefore, he lodged this F.I.R. The investigation was carried out and the goods were seized. The first point for consideration was whether the offence under Section 63 of the Copyright Act, 1957 and also subsequently applied section 103 of the Trademarks Act, 1999 were bailable or non bailable. The Advocate for Applicant invited courts attention to the order passed by the learned Magistrate, wherein the co-accused were granted bail on the ground that, section 418 of I.P.C. was bailable and, therefore, bail was granted to the co-accused. Perusal of that order shows that the learned Magistrate has only referred to Section 418 of IPC and has not considered Section 63 of the Copyright Act and Section 103 of the Trademarks Act. Advocate for Applicant claimed parity with co-accused in this case. The allegations against the applicant are that he was manufacturing all these pipes and at his instance the pipes were being transported and sold. The investigation papers produced by Advocate for State before the court showed photographs of those pipes which bore the aforementioned name and registration number of the trademark of complainant’s company. Therefore, the first question which needed to be addressed and decided is to whether the offence punishable under Section 63 of the Copyright Act, 1957 and Section 103 of Trademarks Act, 1999 are bailable or non bailable.
The High Court rejected the Anticipatory Bail in the present case after considering various judgments submitted by both the parties. It held that the question, whether the offence is bailable or not has to be seen in the light of definition of bailable offence provided under section 2(a) of the Cr.p.c. which reads thus:
“2. Definitions…… (a) “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non bailable offence” means any other offence;” the next relevant sections would be sub section 2 of section 4 and section 5 of the CrPC. as they are referred to by the Division Bench of this court in the case of Mahesh Shivram Puthran (supra). Bare reading of Part II of the Schedule-I of CrPC. shows that, if the offences in the other laws are punishable with imprisonment for three years and upwards then the offences are cognizable and non bailable. Wherever it is possible to impose the punishment extending to three years, this category would apply, because in such offences it is possible to impose sentence of exact three years. In such cases offences would be non-bailable. First question raised before the court is answered that the offences under section 63 of the Copyright Act, 1957 and section 103 of Trademarks Act, 1999 are non bailable in nature and, therefore, since these sections are applied here, the application for anticipatory bail is maintainable. The Advocate for Applicant submitted that, sub section 4 of section 115 of the Trademarks Act, 1999 prohibits investigation by any other officer below the rank of Deputy Superintendent of Police. He also relied on the same provision and submitted that the police officer before making any search and seizure had to obtain opinion of the Registrar on the facts involved in the offence relating to Trademark and shall abide by the opinion so obtained. Justice Sarang Kotwal held that in the present case that whether there is infringement of Copyright Act attracting punishment under section 63 of the Act; is a matter of investigation, but certainly there appears to be infringement of the trademark registered in the name of the informant’s company. Therefore, commission of offence punishable under section 103 of the Trademarks Act is clearly made out. The accused have falsely applied the informant’s trademark to their own products and have attempted to sell those products. Thus, the act of the accused also amounts to offence under section 420 r/w. 511 of the IPC. By their act, the public was induced, or an attempt was made to induce the public to buy these products under the impression that they were manufactured by the informant’s company.
The punishment for the offence made under the Section 63 of the Copyright Act Act and Trademark Act, 1999 is imprisonment which cannot be less than 6 months, but which may extend to 3 years. The Code of Criminal Procedure, 1973 lays down that if the offence is punishable “by imprisonment for three years and upwards but not more than seven years”, the procedural law provides that the offence will be cognizable and non-bailable whereas if any offence is punishable with imprisonment of less than 6 months then it is a non-cognizable offence. Therefore, in such circumstances the offence committed under Section 63 of the Copyright Act, 1957 and Section 103 of the Trademarks Act, 1999 has to be held cognizable and non-bailable.