Case Note & Summary
The petitioner, Surendra Yeshwant Karnik, sole proprietor of M/s. Karnik & Associates, filed a criminal writ petition challenging FIR No. 2 of 2004 registered at Vakola Police Station, Mumbai on 23.7.2004 pursuant to a Magistrate's order dated 19.7.2004. The FIR was lodged by respondent No. 3, Kondibhau Pokharkar, alleging offences under Sections 78 and 79 of the Trade & Merchandise Marks Act, 1958. The petitioner contended that the Trade & Merchandise Marks Act, 1958 was repealed and replaced by the Trade Marks Act, 1999, which came into force on 15.9.2003. The petitioner argued that the complaint did not disclose that respondent No. 3 was the holder of a registered trade mark in respect of the mark allegedly infringed, which is a prerequisite for an offence under Section 29 of the 1999 Act read with Section 189 thereof. Consequently, the police could not have registered the FIR for offences under the repealed Act. The court heard the parties and perused the record. The court found that the complaint indeed did not state that the complainant was a registered proprietor of the trade mark. Therefore, no offence under the Trade Marks Act, 1999 was disclosed. The court held that the FIR was liable to be quashed. The court also noted that the police inspector lacked authority to conduct search and seizure under the 1999 Act without proper authorization. The petition was allowed, and the FIR was quashed.
Headnote
A) Criminal Law - Trade Mark Infringement - Registration Requirement - Sections 78, 79 Trade & Merchandise Marks Act, 1958 read with Section 29 Trade Marks Act, 1999 - The complaint did not disclose that the complainant was a registered proprietor of the trade mark, which is essential for an offence of infringement - Held that without registration, no offence under the Trade Marks Act is made out, and the FIR is liable to be quashed (Paras 2-3).
Issue of Consideration
Whether the FIR registered under the Trade & Merchandise Marks Act, 1958 is maintainable when the complainant is not a registered proprietor of the trade mark and the Act has been repealed.
Final Decision
The petition is allowed. FIR No. 2 of 2004 registered at Vakola Police Station is quashed.
Law Points
- Trade mark infringement requires registered proprietor
- Repealed Act cannot be invoked after new Act
- Police powers limited under Trade Marks Act
- 1999
Case Details
2005 LawText (BOM) (04) 96
Criminal Writ Petition No. 1641 of 2004
R.M.S. Khandeparkar, P.V. Kakade
Mr. S.R. Chitnis with S.V. Kotwal for the petitioner; Mr. B.H. Mehta, A.P.P. for the Respondent Nos. 1 & 2; Mr. Rajeev Matkar for the Respondent No.3
Mr. Surendra Yeshwant Karnik
The Sr. Inspector of Police, Vakola Police Station, Mumbai; The State Of Maharashtra, Mumbai; Kondibhau Pokharkar
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Nature of Litigation
Criminal writ petition challenging FIR and police powers
Remedy Sought
Quashing of FIR No. 2 of 2004 and declaration that police lacked authority to search and seize
Filing Reason
The FIR did not disclose any offence under the Trade Marks Act as the complainant was not a registered proprietor
Previous Decisions
Magistrate order dated 19.7.2004 directing registration of FIR
Issues
Whether the FIR under the repealed Trade & Merchandise Marks Act, 1958 is maintainable when the complainant is not a registered proprietor
Whether the police had authority to conduct search and seizure under the Trade Marks Act, 1999
Submissions/Arguments
Petitioner: The complaint does not disclose that respondent No. 2 is a registered proprietor of the trade mark, hence no offence under Section 29 of the 1999 Act is made out; the police could not register FIR under the repealed Act.
Respondents: Not mentioned in the judgment text.
Ratio Decidendi
For an offence of trade mark infringement under the Trade Marks Act, 1999, the complainant must be a registered proprietor of the mark. In the absence of such registration, no offence is disclosed, and the FIR is liable to be quashed.
Judgment Excerpts
The petitioner challenges the F.I.R. No. 2 of 2004 recorded on 23.7.2004 at Vakola Police Station, Mumbai, pursuant to the order of the Magistrate dated 19.7.2004.
It is the contention of the petitioner that the facts alleged in the complaint nowhere reveal that the respondent No.2 is the holder of registered trade mark in respect of the mark in relation to which the complaint of infringement under the provisions of the Trade & Merchandise Marks Act, 1958 has been filed.
Procedural History
The petitioner filed a criminal writ petition before the Bombay High Court challenging FIR No. 2 of 2004 registered on 23.7.2004 at Vakola Police Station, Mumbai, based on a complaint by respondent No. 3, pursuant to a Magistrate's order dated 19.7.2004. The court heard the matter and delivered judgment on 4.4.2005.
Acts & Sections
- Trade & Merchandise Marks Act, 1958: 78, 79
- Trade Marks Act, 1999: 29, 189
