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| NECESSARY DECLARATION OF NOTICE |
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It is advised to put the following notice / warning on all printed material, catalogues, brochures, labels, packing material etc., for the protection of legal rights, as per international conventions: - |
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ALWAYS mention “R in a circle” or any other appropriate words, over your trade mark “XXXXXXXXXX”, if trade mark is registered. |
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MUST mention the letter “c” in a circle, on all printed material, catalogues, brochures, labels, packing material etc. |
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MUST mention / print the following warning on all printed material, catalogues, brochures, labels, packing material etc. : -
C, Year, India, c & Tm of …..Company name, complete address…………………., India, All Rights reserved. Infringement in any form prohibited & actionable. |
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| FORUM / JURISDICTION FOR FILING CIVIL / CRIMINAL LITIGATION |
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Civil Cases |
In India, the jurisdiction for the purposes of filing a civil suit, will depend upon following facts, and subject to the fulfillment of following conditions:- |
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Where the cause of action has accrued; |
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Where the part of the cause of action has accrued; |
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Where the properties / violations are taking place; |
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Where the defendants reside or work for gain; |
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Therefore, in brief, the jurisdiction for the purposes of filing a case would depend upon the activities of the defendants / their place of business.
It may further be noted that mere sale of a product in a particular area / location / city is sufficient to invoke jurisdiction of court of that District / City.
In India, it is also very much possible to file a suit in the court of law, if prima facie it can be shown that the goods are available and sold with in the jurisdiction of the court.
Once jurisdiction of a court is invoked, the orders of such court are binding
On the defendant against whom the case has been instituted, wherever the defendant is situated in India, and it is not necessary to file suits in the courts of different jurisdiction, separately.
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| COMPETENT COURT |
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In India a suit may be instituted in any court of original jurisdiction, subject to their pecuniary & territorial jurisdiction. The Designation of the lowest court is “District & Sessions Judge”. These cases can also be filed in the High Court, Directly, if such High Court is having original jurisdiction, e.g. Delhi High Court, which has the original jurisdiction.
The Jurisdiction of High Court could be invoked, subject to the payment of court fees, which is diminishing in nature. The structure of Court fees vary from state to state.
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| CRIMINAL COMPLAINT / FIR / CASES |
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In case of infringement / passing off of trade mark, a criminal complaint can also be filed. It may please be noted that under the Provisions of the Trade Marks Act, 1999, the offences under the Act are cognizable, meaning there by police can register an FIR (First Information Report) and prosecute the offenders directly. In all such cases, the alternative is to file a criminal complaint has to be filed in the court of Chief Judicial / Chief Metropolitan Magistrate of competent jurisdiction, on which the court after satisfying itself, would issue a General Search and Seizure Warrant, for conducting raid, search and seizure of the infringing material from any premises where infringing material is manufacture, packed, stocked, infringing labels are printed. In alternative the concerned court can also issue a direction to Police to conduct inquiry, investigate and prosecute the offenders.
However, if the artwork, get up, design, color combination of a trade mark/ label/ packing material is similar and / or deceptively similar, the provisions of the Copyright Act, 1957, can also be invoked along with the Trade Marks Act, 1999, and this course of action is always preferable, as under the provisions of the Copyright Act, 1957, the offences becomes COGNIZABLE, and police can on its own directly initiate Criminal proceedings after registration of an FIR.
Under the Trade Marks Act, 1999, the offences are punishable with 3 years of imprisonment or fine, where as under the provisions of the Copyright Act, the offences are punishable with three years of imprisonment and / or fine up to 2 Lakh Rupees.
It may please further be noted that though under law, the police is under an obligation to register an FIR, Investigate and prosecute the offenders, but generally they are apprehensive about initiating action themselves, due to peculiar nature of the Trade Marks Act, 1999, The Copyright Act, 1957, and lack of knowledge of law and its applicability, it is advisable to file a criminal complaint in the court, which after satisfying itself as per law, may issue General Search and Seizure warrants, and investigate itself or through police.
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