[Trademarks Act] Infringement Proceedings Can't Be Quashed Due To 'Irregularity' Of Search & Seizure Without Registrar's Opinion: Karnataka HC

The Karnataka High Court has held that non-compliance with Subsection (4) of Section 115 of the Trade Mark Act, which mandates taking opinion of the Registrar of Trade Marks, before carrying out search and seizure is an irregularity for which the infringement proceedings cannot be quashed.A single judge bench of Justice Suraj Govindaraj held thus while dismissing a petition filed by Manjunatha M S who had approached the court questioning the prosecution initiated against him for offences punishable under Sections 482, 483 and 420 of the Indian Penal Code read with Sections 102, 103 and 104 of the Trade Mark Act, 1999. It said “Non-compliance with the requirement of proviso to Subsection (4) of Section 115 of the TM Act is an irregularity and any failure of justice would have to be established during the course of trial.”Further it held there is no embargo for a chargesheet to be laid for offences under provisions of the Trademark Act, even though the complaint as filed and the FIR registered by the police was for offences under Section 63 of the Copyright Act. “If the registration of the complaint was malafide and was so registered under the wrong provisions purposely, then this Court in exercise of its powers under Section 482 of CrPC could intercede in the matter,” it said. K R Nagendra lodged a complaint on October 4, 2013 against the petitioner who is in the business of the sale of gram flour under the name and style of “MRS Ganapathi” brand under under Section 63 of the Copyright Act, 1967 and Sections 482, 483 and 420. Pursuant to the FIR a search of the premises of the petitioner was conducted. The Police seized certain bags of gram flour and other items and then laid chargesheet for the offences and offence under Section 63 of Copyright Act was dropped. The petitioner claimed the complaint was purposefully wrongly registered under Section 63 of the Copyright Act, thereafter a search and seizure was conducted at the premises of the petitioner to by-pass the requisite requirements under Sections 102, 103, and 104 of the TM Act. Thus abuse of the process of law has been committed by both the complainant and the Investigating Office. It was said that police have not complied with the requisites of Subsection (4) of Section 115 of the TM Act. Subsection (4) of Section 115 of the TM Act, mandates that no Police Officer below the rank of Deputy Superintendent of Police can issue instructions to conduct any search or seizure unless he obtains the opinion of the Registrar of Trade Marks and he shall abide by such opinion.The complainant opposed the plea saying that the non-compliance of the requirements of the proviso to sub-section (4) of Section 115 of the TM Act would not require this Court to quash the proceedings. Findings: The bench noted that in certain circumstances, the complainant could have quoted a wrong provision, that would not mean that the concerned Police Authorities are bound to reproduce the provisions cited by the complainant, as it is, the concerned Authorities could, while registering the FIR, incorporate the appropriate provision. Similarly, in certain circumstances, ex-facie reading of the complaint may indicate that offences under particular provisions are committed, however, during the course of investigation, it may come to light that those offences are not committed and or offences under different enactments or different provisions of the same enactment have been committed.Referring to the complaint it said, “The registration of an FIR for offences under Section 63 of the Copyright Act and Sections 482, 483 and 420 of the IPC ex-facie was not a proper one and it is apparently for this reason that subsequently, on the investigation being completed, chargesheet has been laid for the offences under Sections 102, 103 and 104 of the T.M. Act read with Sections 482, 483 and 420 of the IPC. This ex-facie cannot be faulted with.” In regards to the aspect of whether there was a wanton and calculated move on part of the complainant and the Investigating Officer to register such a complaint under Section 63 of the Copyright Act 1957, only to try and get over the requirement of getting permission from the Registrar of Trade Mark. The court said “Obtaining of the opinion from the Registrar of Trademarks as required under the proviso to Subsection (4) of Section 115 of the TM Act have been held not to be mandatory, a violation thereof has been held to be an irregularity which cannot be set aside unless a failure of justice has been occasioned which would have to be established during the course of trial.” Following this it said that since the complaint itself was registered under section 63 of the Copyright Act, I am of the considered opinion that it was not mandatory for the concerned Police officer at that stage to comply with the proviso to Subsection (4) of Section 115 of the TM Act.It added “When the items were seized it came to light that offences under Sections 103, 104 and 105 of the...

[Trademarks Act] Infringement Proceedings Can't Be Quashed Due To 'Irregularity' Of Search & Seizure Without Registrar's Opinion: Karnataka HC

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