GENERAL GUIDELINES
FOR SEARCH AND SEIZURE TO POLICE OFFICER UNDER IP LAWS
1)
Immediate or expeditious execution of search and
seizure action is imperative to effectively address piracy. Given the covert
nature of piracy, acting immediately on information on piracy is critical and
any delay will likely defeat the purpose;
2)
In all types of arrest, search and seizure, the
provisions of the Criminal Procedure Code read with section 115 of Trademark
Act, 1999 or any other specific provision as the case may be and the
precautions pronounced by the Hon'ble Court must be followed to avoid the
procedural lacunae.
3)
Search or seizure at any premises shall be
conducted only by an officer of the rank not below the Deputy Superintendent of
Police or with relevant authority under him;
4)
The concerned police officer conducting the
search and seizure shall exercise all powers available to the police to
effectuate the search and seizure including lock breaking powers;
5)
Search/seizure shall be conducted as per
prescribed procedure and reasons for doing so by the concerned police officer
as informed by the contents of complaint made by complainant;
6)
Search and Seizure actions should be conducted
in premises identified by the complainant as well as at any other premises
subsequently identified during course of investigation and action;
7)
Police officers shall seek to secure the
presence of the owner of the entity/shop/house premises, employees and
official panch witnesses at the time of
conducting such search/seizure and also obtain the signatures of the owner of
the shop, the landlord of the premises if available, employees if present and
the panch witnesses therein;
8)
Linking owner with location of infringement- The
concerned police officer shall also obtain copies of the licenses issued by the
municipality/corporation to operate the shop/entity. Any rent deed/leave and
license agreement shall also be obtained from the premises, if available.
9)
The shop owner should be examined. The
statements of the owner of the premises shall also be recorded under section
161 of Code of Criminal Procedure;
10)
The concerned officer shall take due care to
ascertain and obtain all the evidences available at the premises during the
time of search and seizure and prepare an inventory thereof for the purpose of
record and preserve them for the future references.
10)
11)
All accounts books, financial details, receipt
books, payment slips etc. should be seized to preserve evidence of money
laundering of proceeds from IP crimes;
12)
In case of disclosures by accused of additional
premises/ details of infringing activity, these should be recorded and
immediately/ expeditiously followed up by search and seizure on those premises
also;
13)
Police officers should call upon two or more
independent and respectable inhabitants of the locality in which the place to
be searched is situated. The search must be conducted in the presence of such
witnesses as per Section 100 (4) of the CrPC;
14)
As per Section 160, 161 and 162 of the CrPC, if
the investigating officer considers it necessary, he may order in writing,
attendance of witnesses residing within the limits of his own or adjoining
police stations and examine such witnesses. Statement of such witness, if
reduced in writing, need not be signed by the person making it;
15)
Acknowledgment shall be given to the
accused/owner of the premises where search or seizure was conducted of the copy
of the panchnama together with all other annexures. The description of place of
offence should be mentioned in panchnama;
16)
List of seized articles should be furnished to
the accused under Section 165 of the CrPC;
17)
The search and seizure proceedings shall be
covered through videography and the statement of the videographer shall
be reduced to writing and recorded in detail under Section 161 of Code
of Criminal Procedure at the cost of the complainant;
18)
In cases of video or audio or book piracy, the
investigating officer may, if necessary, inspect the home premises of the owner
of the shop/entity;
19)
Photographs of the premises/shop should be
taken while the accused is carrying on the business;
20)
Photographs of the premises, book shop or any
other entity involved in
video/audio/book piracy should be taken;
21)
Seizure of all infringing products available in
the premises is imperative. A list of items to be seized is provided in the
accompanying checklist.
22)
The concerned police officer shall have an
account of the number of such confiscated infringing products and apparatus and
shall get the signature of the owner of the shop while removing it from the
premises of the shop;
23)
Police officers shall secure identification of
infringing material from complainant and record such statement accordingly
after completion of search and seizure;
24)
All digital / electronic material seized during
a search and seizure material should be carefully sealed for validation by
State/ Central Forensics Laboratory;
25)
"Mirror copies" of digital/ electronic
evidence should be immediately made to preserve evidence and to send to State/
Central Forensics Laboratory;
26)
All the properties or infringing products
seized, which shall include the
infringing copies, plates, broadcasting equipment, other accessories involved in relaying/
exploiting/manufacturing/ producing the infringing copies including laptop or
hard disk of machine on which video/audio/ infringing material was found to be
residing/installed/ duplicated and all other products seized during the course
of search and seizure shall be neatly and safely packed, sealed and shall be
produced before the magistrate as earlier as possible without any lapse of
time;
27)
Challan should be filed before the competent
magistrate as per the provisions of the Section 173 of the Code of Criminal
Procedure, 1973 within the specified period, i.e., within 60 or 90 days as the
case may be.
OFFENCE UNDER THE IP LAWS
| S. No. | Provision under the Trade Marks Act | Definition of/ Punishment for the Criminal Offence |
| 1 | Section 101 | (1) A person shall be deemed to apply a trademark or mark or trade description to goods or services who-- |
| Meaning of applying trademarks and trade descriptions | (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 trademark 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 | Section 102 | (1) A person shall be deemed to falsify a trade mark who, either,-- |
| Meaning of falsifying and falsely applying trade marks | (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. | ||
| 3 | Section 103 | Any person who- |
| Penalty for applying false trademarks, trade descriptions, etc. | (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 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. | ||
| 4 | Section 104 | 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,-- |
| Penalty for selling goods or providing services to which false trade mark or false trade description is applied | (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, shall be punishable 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. | ||
| 5 | Section 105 | 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 |
| Enhanced Penalty on second or subsequent conviction | 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 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. | ||
| 6 | Section 114 | 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: |
| Offences by Companies | 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. | ||
| 5. Criminal Offenses under the Copyright Act, 1957 | ||
| 1 | Section 63 | |
| Intentional infringement or abetment of the infringement of the copyright in a work. | Imprisonment for a term which shall not be less than six months and 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. | |
| 2 | Section 63A | |
| Second and subsequent convictions | 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 | |
| 3 | Section 63B | |
| Knowing use of infringing copy of computer program | Imprisonment for a term which shall not be less than seven days 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. | |
| 4 | Section 65 | |
| Possession of plates for purpose of making infringing copies | Imprisonment which may extend to two years and shall also be liable to fine. | |
| 5 | Section 65A | |
| Protection of technological measures | Imprisonment which may extend to two years and shall also be liable to fine. | |
| 6 | Section 65B | |
| Protection of Rights Management Information | Imprisonment which may extend to two years and shall also be liable to fine. | |
| 7 | Section 67 | |
| Penalty for making false entries in register for producing or tendering false entries | Imprisonment which may extend to one year or with fine or both. | |
| 8 | Section 68 | |
| Penalty for making false statements for the purpose of deceiving or influencing any authority or officer | Imprisonment which may extend to one year or with fine or both. | |
| 9 | Section 68A | |
| Penalty for contravention of Section 52A (particulars to be included in Sound Recordings and Video films) | Imprisonment which may extend to three years and shall also be liable to fine. | |
| 10 | Section 69 | |
| Offences by Companies | In case an offence under the Copyright Act is committed by a company or a partnership firm, all directors, partners, managers, secretaries etc. who are responsible for the conduct of the business of the said company/partnership firm shall be guilty of such offence along with the company/partnership firm as the case may be. However, such persons shall not be liable if they prove that they exercised all due diligence to prevent the commission of such offence or it was committed without their knowledge. |
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