101. Meaning of applying trade marks and trade descriptions.—

(1) A person shall be deemed to  apply a trade mark or mark or trade description to goods or services who— 

(a) applies it to the goods themselves or uses it in relation to services; or  

(b) applies it to any package in or with which the goods are sold, or exposed for sale, or had in  possession for sale or for any purpose of trade or manufacture; or  

(c) places, encloses or annexes any goods which are sold, or exposed for sale, or had in  possession for sale or for any purpose of trade or manufacture, in or with any package or other thing  to which a trade mark or mark or trade description has been applied; or  

(d) uses a trade mark or mark or trade description in any manner reasonably likely to lead to the  belief that the goods or services in connection with which it is used are designated or described by  that trade mark or mark or trade description; or  

(e) in relation to the goods or services uses a trade mark or trade description in any sign,  advertisement, invoice, catalogue, business letter, business paper, price list or other commercial  document and goods are delivered or services are rendered to a person in pursuance of a request or  order made by reference to the trade mark or trade description as so used.  

(2) A trade mark or mark or trade description shall be deemed to be applied to goods whether it is  woven in, impressed on, or otherwise worked into, or annexed or affixed to, the goods or to any package  or other thing.  

102. Falsifying and falsely applying trade marks.—

(1) A person shall be deemed to falsify a trade  mark who, either,— 

(a) without the assent of the proprietor of the trade mark makes that trade mark or a deceptively  similar mark; or  

(b) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise.  

(2) A person shall be deemed to falsely apply to goods or services a trade mark who, without the  assent of the proprietor of the trade mark,— 

(a) applies such trade mark or a deceptively similar mark to goods or services or any package  containing goods;  

(b) uses any package bearing a mark which is identical with or deceptively similar to the trade  mark of such proprietor, for the purpose of packing, filling or wrapping therein any goods other than  the genuine goods of the proprietor of the trade mark.  

(3) Any trade mark falsified as mentioned in sub-section (1) or falsely applied as mentioned in  sub-section (2), is in this Act referred to as a false trade mark.  

(4) In any prosecution for falsifying a trade mark or falsely applying a trade mark to goods or  services, the burden of proving the assent of the proprietor shall lie on the accused. 

103. Penalty for applying false trade marks, trade descriptions, etc.—

Any person who—

(a) falsifies any trade mark; or  

(b) falsely applies to goods or services any trade mark; or  

(c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument  for the purpose of falsifying or of being used for falsifying, a trade mark; or 

(d) applies any false trade description to goods or services; or  

(e) applies to any goods to which an indication of the country or place in which they were made  or produced or the name and address of the manufacturer or person for whom the goods are  manufactured is required to be applied under section 139, a false indication of such country, place,  name or address; or  

(f) tampers with, alters or effaces an indication of origin which has been applied to any goods to  which it is required to be applied under section 139; or  

(g) causes any of the things above mentioned in this section to be done,  shall, unless he proves that he acted, without intent to defraud, be punishable with imprisonment for a  term which shall not be less than six months but which may extend to three years and with fine which  shall not be less than fifty thousand rupees but which may extend to two lakh rupees:  

Provided that the court may, for adequate and special reasons to be mentioned in the judgment,  impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand  rupees. 

104. Penalty for selling goods or providing services to which false trade mark or false trade  description is applied.—

Any person who sells, lets for hire or exposes for sale, or hires or has in his  possession for sale, goods or things, or provides or hires services, to which any false trade mark or false  trade description is applied or which, being required under section 139 to have applied to them an  indication of the country or place in which they were made or produced or the name and address of the  manufacturer, or person for whom the goods are manufactured or services provided, as the case may be,  are without the indications so required, shall, unless he proves,— 

(a) that, having taken all reasonable precautions against committing an offence against this  section, he had at the time of commission of the alleged offence no reason to suspect the genuineness  of the trade mark or trade description or that any offence had been committed in respect of the goods  or services; or  

(b) that, on demand by or on behalf of the prosecutor, he gave all the information in his power  with respect to the person from whom he obtained such goods or things or services; or  

(c) that otherwise he had acted innocently,  be punishable with imprisonment for a term which shall not be less than six months but which may  extend to three years and with fine which shall not be less than fifty thousand rupees but which may  extend to two lakh rupees:  

Provided that the court may, for adequate and special reasons to be mentioned in the judgment,  impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand  rupees.  

105. Enhanced penalty on second or subsequent conviction.—

Whoever having already been convicted  of an offence under section 103 or section 104 is again convicted of any such offence shall be punishable  for the second and for every subsequent offence, with imprisonment for a term which shall not be less  than one year but which may extend to three years and with fine which shall not be less than one lakh  rupees but which may extend to two lakh rupees:  

Provided that the court may, for adequate and special reason to be mentioned in the judgement,  impose a sentence of imprisonment for a term of less than one year or a fine of less than one lakh rupees:  

Provided further that for the purposes of this section, no cognizance shall be taken of any conviction  made before the commencement of this Act.

106. Penalty for removing piece goods, etc., contrary to section 81.—

If any person removes or  attempts to remove or causes or attempts to cause to be removed for sale from any premises referred to in  section 81 or sells or exposes for sale or has in his possession for sale or for any purpose of trade or  manufacture piece goods or cotton yarn or cotton thread which is not marked as required by that section,  every such piece and every such bundle of yarn and all such thread and everything used for the packing  thereof shall be forfeited to Government and such person shall be punishable with fine which may extend  to one thousand rupees.  

107. Penalty for falsely representing a trade mark as registered.—

(1) No person shall make any  representation— 

(a) with respect to a mark, not being a registered trade mark, to the effect that it is a registered  trade mark; or  

(b) with respect to a part of a registered trade mark, not being a part separately registered as a  trade mark, to the effect that it is separately registered as a trade mark; or  

(c) to the effect that a registered trade mark is registered in respect of any goods or services in  respect of which it is not in fact registered; or  

(d) to the effect that registration of a trade mark gives an exclusive right to the use thereof in any  circumstances in which, having regard to limitation entered on the register, the registration does not in  fact give that right.  

(2) If any person contravenes any of the provisions of sub-section (1), he shall be punishable with  imprisonment for a term which may extend to three years, or with fine, or with both.  

(3) For the purposes of this section, the use in India in relation to a trade mark of the word  ―registered‖, or of any other expression, symbol or sign referring whether expressly or impliedly to  registration, shall be deemed to import a reference to registration in the register, except— 

(a) where that word or other expression, symbol or sign is used in direct association with other  words delineated in characters at least as large as those in which that word or other expression,  symbol or sign is delineated and indicating that the reference is to registration as a trade mark under  the law of a country outside India being a country under the law of which the registration referred to  is in fact in force; or  

(b) where that other expression, symbol or sign is of itself such as to indicate that the reference is  to such registration as is mentioned in clause (a); or  

(c) where that word is used in relation to a mark registered as a trade mark under the law of a  country outside India and in relation solely to goods to be exported to that country or in relation to  services for use in that country.  

108. Penalty for improperly describing a place of business as connected with the Trade Marks  Office.—

If any person uses on his place of business, or on any document issued by him, or otherwise,  words which would reasonably lead to the belief that his place of business is, or is officially connected  with, the Trade Marks Office, he shall be punishable with imprisonment for a term which may extend to  two years, or with fine, or with both.  

109. Penalty for falsification of entries in the register.—

If any person makes, or causes to be  made, a false entry in the register, or a writing falsely purporting to be a copy of an entry in the register,  or produces or tenders or causes to be produced or tendered, in evidence any such writing, knowing the  entry or writing to be false, he shall be punishable with imprisonment for a term which may extend to two  years, or with fine, or with both.  

110. No offence in certain cases.—

The provisions of sections 102, 103, 104 and 105 shall, in  relation to a registered trade mark or proprietor of such mark, be subject to the rights created or  recognised by this Act and no act or omission shall be deemed to be an offence under the aforesaid  sections if,— 

(a) the alleged offence relates to a registered trade mark and the act or omission is permitted  under this Act; and 

(b) the alleged offence relates to a registered or an unregistered trade mark and the act or  omission is permitted under any other law for the time being in force.  

111. Forfeiture of goods.—

(1) Where a person is convicted of an offence under section 103 or  section 104 or section 105 or is acquitted of an offence under section 103 or section 104 on proof that he  acted without intent to defraud, or under section 104 on proof of the matters specified in clause (a),  clause (b) or clause (c) of that section, the court convicting or acquitting him may direct the forfeiture to  Government of all goods and things by means of, or in relation to, which the offence has been committed,  or but for such proof as aforesaid would have been committed.  

(2) When a forfeiture is directed on a conviction and an appeal lies against the conviction, an appeal  shall lie against the forfeiture also.  

(3) When a forfeiture is directed on acquittal and the goods or things to which the direction relates are  of value exceeding fifty rupees, an appeal against the forfeiture may be preferred, within thirty days from  the date of the direction, to the court to which in appealable cases appeals lie from sentences of the court  which directed the forfeiture.  

(4) When a forfeiture is directed on a conviction, the court, before whom the person is convicted, may  order any forfeited articles to be destroyed or otherwise disposed of as the court thinks fit. 

112. Exemption of certain persons employed in ordinary course of business.—

Where a person  accused of an offence under section 103 proves— 

(a) that in the ordinary course of his business he is employed on behalf of other persons to apply  trade marks or trade descriptions, or as the case may be, to make dies, blocks, machines, plates, or  other instruments for making, or being used in making, trade marks; and  

(b) that in the case which is the subject of the charge he was so employed, and was not interested  in the goods or other thing by way of profit or commission dependent on the sale of such goods or  providing of services, as the case may be; and  

(c) that, having taken all reasonable precautions against committing the offence charged, he had,  at the time of the commission of the alleged offence, no reason to suspect the genuineness of the trade  mark or trade description; and  

(d) that, on demand made by or on behalf of the prosecutor, he gave all the information in his  power with respect to the persons on whose behalf the trade mark or trade description was applied,  he shall be acquitted.  

113. Procedure where invalidity of registration is pleaded by the accused.—

(1) Where the  offence charged under section 103 or section 104 or section 105 is in relation to a registered trade mark  and the accused pleads that the registration of the trade mark is invalid, the following procedure shall be  followed:— 

(a) If the court is satisfied that such defence is prima facie tenable, it shall not proceed with the  charge but shall adjourn the proceeding for three months from the date on which the plea of the  accused is recorded to enable the accused to file an application before the Appellate Board under this  Act, for the rectification of the register on the ground that the registration is invalid.  

(b) If the accused proves to the court that he has made such application within the time so limited  or within such further time as the court may for sufficient cause allow, the further proceedings in the  prosecution shall stand stayed till the disposal of such application for rectification.  

(c) If within a period of three months or within such extended time as may be allowed by the  court the accused fails to apply to the Appellate Board for rectification of the register, the court shall  proceed with the case as if the registration were valid.  

(2) Where before the institution of a complaint of an offence referred to in sub-section (1), any  application for the rectification of the register concerning the trade mark in question on the ground of  invalidity of the registration thereof has already been properly made to and is pending before the tribunal,  the court shall stay the further proceedings in the prosecution pending the disposal of the application  aforesaid and shall determine the charge against the accused in conformity with the result of the  application for rectification in so far as the complainant relies upon the registration of his mark. 

114. Offences by companies.—

(1) If the person committing an offence under this Act is a company,  the company as well as every person in charge of, and responsible to, the company for the conduct of its  business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall  be liable to be proceeded against and punished accordingly:  

Provided that nothing contained in this sub-section shall render any such person liable to any  punishment if he proves that the offence was committed without his knowledge or that he exercised all  due diligence to prevent the commission of such offence.  

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been  committed by a company and it is proved that the offence has been committed with the consent or  connivance of, or that the commission of the offence is attributable to any neglect on the part of, any  director, manager, secretary or other officer of the company, such director, manager, secretary or other  officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and  punished accordingly.  

Explanation.—

For the purposes of this section— 

(a) ―company‖ means any body corporate and includes a firm or other association of individuals;  and  

(b) ―director‖, in relation to a firm, means a partner in the firm.  

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 authorised 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 offences 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.  

(5) Any person having an interest in any article seized under sub-section (4), may, within fifteen days  of such seizure, make an application to the Judicial Magistrate of the first class or Metropolitan  Magistrate, as the case may be, for such article being restored to him and the Magistrate, after hearing the  applicant and the prosecution, shall make such order on the application as he may deem fit.  

116. Evidence of origin of goods imported by sea.—

In the case of goods brought into India by sea,  evidence of the port of shipment shall, in a prosecution for an offence under this Act or under clause (b)  of section 112 of the Customs Act, 1962 (52 of 1962) relating to confiscation of goods under clause (d) of  section 111 and notified by the Central Government under clause (n) of sub-section (2) of section 11 of  the said Act for the protection of trade marks relating to import of goods, be prima facie evidence of the  place or country in which the goods were made or produced.  

117. Costs of defence or prosecution.—

In any prosecution under this Act, the court may order such  costs to be paid by the accused to the complainant, or by the complainant to the accused, as the court  deems reasonable having regard to all the circumstances of the case and the conduct of the parties and the  costs so awarded shall be recoverable as if they were a fine. 

118. Limitation of prosecution.—

No prosecution for an offence under this Act or under clause (b)  of section 112 of the Customs Act,1962 (52 of 1962), relating to confiscation of goods under clause (d) of  section 111 and notified by the Central Government under clause (n) of sub-section (2) of section 11 of  the said Act for the protection of trade marks, relating to import of goods shall be commenced after  expiration of three years next after the commission of the offence charged, or two years after the  discovery thereof by the prosecutor, whichever expiration first-happens.  

119. Information as to commission of offence.—

An officer of the Government whose duty it is to  take part in the enforcement of the provisions of this Chapter shall not be compelled in any court to say  whence he got any information as to the commission of any offence against this Act.  

120. Punishment of abetment in India of acts done out of India.—

If any person, being within  India, abets the commission, without India, of any act which, if committed in India, would, under this  Act, be an offence, he may be tried for such abetment in any place in India in which he may be found, and  be punished therefor with the punishment to which he would be liable if he had himself committed in that  place the act which he abetted.  

121. Instructions of Central Government as to permissible variation to be observed by criminal  courts.—

The Central Government may, by notification in the Official Gazette, issue instructions for the  limits of variation, as regards number, quantity, measure, gauge or weight which are to be recognised by  criminal courts as permissible in the case of any goods.