There are civil and criminal remedies when protecting one's intellectual property rights. If a Trademark or Copyright is infringed, an FIR can be registered against the perpetrators, the trial of which shall be conducted in a Magistrate's Court. The criminal remedies are provided for under Chapter XII of the Trademarks Act, 1999 and under Chapter XIII of the Copyright Act, 1957.

Trademark
Trademark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours. In relation to criminal offences, except under Section 107, a trademark means a registered trademark or a mark used in relation to goods or services for the purpose of indicating a connection in the course of trade between the goods or services and some person having the right as proprietor to use the mark.

Section Offence Punishment Bailable/Non-Bailable 102 & 103 Falsifying or falsely applying trademarks, trade descriptions. Imprisonment for a term which shall not be less than 6 months but which may extend to 3 years and with fine which shall be less than Rs.50,000/- but which may extend to Rs.2,00,000/-. Non-Bailable 104 Selling goods or providing services to which false trademark or false trademark description is applied. Imprisonment for a term which shall not be less than 6 months but which may extend to 3 years and with fine which shall not be less than Rs.50,000/- but which may extend to Rs.2,00,000/-. Non-Bailable 105 Enhanced penalty on second or subsequent conviction under Sections 103 or 104. Imprisonment for a term which shall not be less than 1 year but which may extend to 3 years and with fine which shall not be less than Rs. 1,00,000/- but which may extend to Rs. 2,00,000/-. Non-Bailable 106 Removing piece goods, etc contrary to Section 81. Fine which may extend to Rs. 1,000/-. Bailable 107 Falsely representing a trademark as registered. Imprisonment for a term which may extend to 3 years, or with fine, or both. Non-Bailable 108 Improperly describing a place of business as connected with the Trademarks Office. Imprisonment for a term which may extend to 2 years, or with fine, or with both. Bailable 109 Falsification of entries in the register. Imprisonment for a term which may extend to 2 years, or with fine, or with both. Bailable

Cognizance
With respect to offences committed under Sections 107, 108 and 109 of the Trademarks Act, the Magistrate's Court can take cognizance of the offence only on a complaint in writing made by the Registrar or any officer authorized by him. Under the Trademarks Act, Sections 103, 104 and 105 are cognizable offences.

Search and Seizure
Any police officer, not below the rank of Deputy Superintendent of Police, or equivalent, may, if he is satisfied that an offence under Sections 103, 104 and 105 of the Trademarks Act 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. However, before making any search and seizure, the police officer must obtain the opinion of the Registrar on facts involved in the offence relating to Trademark and shall abide by the opinion so obtained.

Copyright
Registration is not a mandatory requirement for initiating criminal action under the Copyright Act. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright and registration is discretionary. Literary work now includes "Computer Program" in its ambit. It clearly explains the rights of a copyright holder, and the rights of the user to make backup copies.

Section Offence Punishment Bailable/Non-Bailable Cognizable/ Non-Cognizable 63 Infringement of copyright or other rights (except rights conferred by Section 53A). Imprisonment for a term which shall not be less than 6 months but which may extend to 3 years and with fine which shall not be less than Rs.50,000/- but which may extend to Rs. 2,00,000/-. Where the infringement has not been made for gain in the course of trade or business - Imprisonment for a term of less than 6 months or a fine of less than Rs.50,000/-. Non-Bailable Cognizable 63A Enhanced penalty on second and subsequent conviction under Section 63. Imprisonment for a term which shall not be less than 1 year but which may extend to 3 years and with fine which shall not be less than Rs.1,00,000/- but which may extend to Rs.2,00,000/-. Where the infringement has not been made for gain in the course of trade or business - Imprisonment for a term of less than 1 year or a fine of less than Rs.1,00,000/-. Non-Bailable Cognizable 63B Knowingly makes use on a computer of an infringing copy of a computer programme. Imprisonment for a term which shall not be less than 7 days but which extend to 3 years and with fine which shall not be less than Rs.50,000/- but which may extend to Rs. 2,00,000/-. Where the infringement has not been made for gain in the course of trade or business - Fine which may extend to Rs.50,000/- Non-Bailable Cognizable 65 Possession of plates with the purpose of making infringing copies. Imprisonment which may extend to 2 years and shall also be liable to fine. Bailable Non-Cognizable 65A Circumventing an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights. Imprisonment which may extend to 2 years and shall also be liable to fine. Bailable Non-Cognizable 65B Knowingly removing or altering any rights management information without authority, or distributing, importing for distribution, broadcasting or communicating to the public, without authority, copies of any work, or performance knowing that electronic rights management information has been removed or altered without authority. Imprisonment which may extend to 2 years and shall also be liable to fine. Bailable Non-Cognizable 67 Making false entries in register, etc. for producing or tendering false entries. Imprisonment which may extend to 1 year, or with fine, or with both. Bailable Non-Cognizable 68 Making false statements for the purpose of deceiving or influencing any authority or officer. Imprisonment which may extend to 1 year, or with fine, or with both. Bailable Non-Cognizable 68A Publishing a sound recording without displaying (a) the name and address of the person who has made the sound recording; (b) the name and address of the owner of the copyright in such work; and (c) the year of its first publication. Publishing a video film without displaying in the video film and video cassette (a) if such work is a cinematograph film required to be certified for exhibition under the provisions of the Cinematograph Act, 1952, a copy of the certificate granted by the Board of Film Certification; (b) the name and address of the person who has made the video film and a declaration by him that he has obtained the necessary licence or consent from the owner of the copyright in such work for making such video film; and (c) the name and address of the owner for the copyright in such work. Imprisonment which may extend to 3 years and shall also be liable to fine. Non-Bailable Cognizable

Search and Seizure
Any police officer, not below the rank of a sub- inspector, may, if he is satisfied that an offence under Section 63 of the Copyright Act has been, is being, or is likely to be, committed, seize without warrant, all copies of the work, and all plates used for the purposes of making infringing copies of the work, wherever found.

Initiation of criminal proceedings
If any of the cognizable offences are committed under the Trademarks Act or the Copyright Act, an aggrieved party can approach the local police station to register an FIR against the perpetrator. If the police refuse to register the FIR on account of it being a civil dispute, the aggrieved party can thereafter approach the Magistrate's Court to obtain an order for registration of FIR. Another option to initiate criminal proceedings is filing a complaint before the Magistrate's Court which is laid down in Section 190 of the Code of Criminal Procedure, 1973.

Liability of a Company
A 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 under the Trademarks Act and the Copyright Act can be arraigned as an Accused. A company under both the Acts are defined to be any body corporate and includes a firm or other association of persons.

Conclusion
Initiating criminal proceedings can prove to be beneficial against perpetrators that infringe a trademark or copyright, as where applicable, the police officers can conduct a search and seize without warrant, the goods or instruments utilized. Moreover, under the Copyright Act, the Magistrate may, whether the perpetrator is convicted or not, order that all copies of the work or all plates in the possession of the perpetrator, which appear to be infringing copies, or plates for the purpose of making infringing copies, be delivered to the owner of the copyright.

By - Lakshmi Raman