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Falsifying Trademarks on Food Products is a Cognizable Offence

Issued: September 01 2011

Tata Tea (the respondent/complainant) lodged a complaint with the Assistant Commissioner of Police (Crime Branch), IPR Section, Delhi, against unknown persons for falsely applying its Tata Tea mark, which has been registered and used since 1988. The police conducted a raid and pursuant to that a first information report (FIR) was registered in which the complainant alleged that the recovered tea pouches contain spurious tea and have the mark ‘Tata Tea’ falsely applied to them. The police concluded its investigation and a charge sheet was filed, however the Additional Chief Metropolitan Magistrate (ACMM) held that the whole proceeding from the investigation stood vitiated as police did not seek permission from the court to conduct the investigation. As a result, Rajesh Garg, the petitioner, was discharged of all allegations in the FIR.

The respondent preferred a criminal revision petition challenging the order of the ACMM. The Additional Sessions Judge (ASJ) held the proceeding to be legal and valid while setting aside the ACMM’s order on the ground that offences relating to trademark infringement when committed in regard to food products are cognizable offences and therefore can be initiated by the police by filing a charge sheet after registering a FIR. As regards to whether tea is a food item, the definition of “food” under the Prevention of Food Adulteration Act, 1954 (PFA Act) was relied upon to conclude that tea is a food article.

The Petitioner sought quashing of the ASJ’s order (Rajesh Garg v. Tata Tea Ltd & Anr, Crl. Rev. P. No. 688/2003 and Crl. M.A. 1221/2003; Delhi High Court) inter alia on the ground that tea is not “food” within the provisions under the trademark law, providing penalty for applying false trademarks and selling goods to which a false trademark is applied. The Court reasoned that tea is a food item for purposes of the PFA Act and relying on an instance (S Samuel, MD, Harrisons Malayalam and Anr v. UOI and Ors 2003(9) SCALE 442) considering tea not to be food for the purposes of the Essential Commodities Act, 1955, is no ground to conclude that tea will not qualify as a food for the purposes of penalizing falsification of trademarks under trademark law.

The Court dismissed the petition finding no merit in it and categorically pointed out that this is a case of alleged packing of counterfeit tea, which may have an adverse effect on its consumers due to its poor quality, and also that such infringement of trademarks with respect to a food article makes this case fit to be interfered with the ACMM’s order in the interest of public policy.

Tata Tea had filed its complaint in the year 2000. The ACMM discharged Rajesh Garg by an order dated December 22, 2000, against which Tata Tea filed a criminal revision petition which was allowed by the ASJ by an order dated June 9, 2003. Garg sought quashing of the ASJ’s order invoking the revisional jurisdiction of Delhi High Court, whose judgment was reserved on June 2, 2010, and delivered on February 18, 2011.

The complaint by Tata Tea was filed under Sections 76 and 78 of the Trade and Merchandise Marks Act, 1958The provisions are penal in nature and provide penalty for applying false marks and selling goods to which a false trademark is applied respectively. The sections also have a proviso under which if the offence is in relation to “food” as defined in the PFA Act, there is an enhancement in punishment (an extra year of imprisonment). The current law, Trade Marks Law 1999 (in force since September 15, 2003), has these provisions under Sections 103 and 104 without the proviso of the earlier legislation however the penalty has been more concretized, i.e. the actions are punishable with imprisonment for a term not less than six months which may extend to three years with a fine of not less than Rs50,000 (US$1,023), which may extend to as much as Rs200,000.

LEX ORBIS Intellectual Property Practice
709/710, Tolstoy House, 15-17,
Tolstoy Marg, New Delhi - 110 001,
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F: +91 11 2371 6556

About the Author

Manisha Singh Nair is a partner at Lex Orbis in New Delhi. She has the distinction of practicing in both the prosecution and enforcement arenas, and has extensive experience in the post-lodgment prosecution of patents, trademarks and designs.


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