The article makes a case for brand protectors to be a step ahead of infringers in order to restore public confidence and promote economic growth A Frontier Economics study commissioned by ICC BASCAP found that the total global economic value of counterfeit and pirated products was as much as US$650 billion in 2008. This figure is expected to more than double...
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The article makes a case for brand protectors to be a step ahead of infringers in order to restore public confidence and promote economic growth
A Frontier Economics study commissioned by ICC BASCAP found that the total global economic value of counterfeit and pirated products was as much as US$650 billion in 2008. This figure is expected to more than double to US$1.7 trillion by 2015, due in part to rapid increases in physical counterfeiting and piracy. In its current avatar, it is a full blown racket capable of destabilising economies. Today, counterfeiting is regularly raising funds for terrorist activities, drug pushing, prostitution apart from robbing governments of billions of rupees worth of taxes. This is in addition to the huge number of job losses and risks to public health.
The concept of brand protection in India suffers from a superficial understanding even amongst the educated strata of the country. Even under law, infringement is taught as a white collar crime.
Abuse of process of Law: There is a gross abuse of the process of law by Advocates. They delay the matter by filing Exemption Applications at the initial stages before the proceedings or by resorting to the remedy of Section 482 to quash the FIR. Sometimes they allege that the FIR was fake and no police action/seizure ever took place or by invoking that the proceedings are illegal and fraudulent against the principles of natural justice or by challenging the jurisdiction of the Court or by asserting illegality in the proceedings. Too many adjournments are sought and easily granted by courts at district level and this again delays the proceedings.
Rule of not over three adjournments is neither quoted nor followed. Sometimes, the forensic laboratory report is missing, hugely delayed or vague. Half baked investigations, scrappy/deficient police charge sheets and inadequate filing of appropriate documents by police too adds to the woes of the remedy seeker and State. To top it all, witnesses are either missing or they turn hostile as the cases drag on for up to 10 yrs. Many times, procedure that the witness must be a person who witnessed the raid action is not observed. Police is empowered by section 160 CrPC to ensure that those present at the site of the raid can be forced to give evidence.
But instead, many times, police puts names of other available persons as witnesses and this too makes the case weak. As they may not turn up or might turn hostile. Many times witness turns up due to court summons after taking leave from his office. But after waiting for hours in facility void courts, he realises that either the case got adjourned or he has to come again next day/date as the examination could not be completed. Witness is usually never paid any travel expenses despite the provision in the law. Witnesses have the right to be reimbursed for the travelling expenses under section 312 of CrPC, the expenditure incurred for the witness to be present in the court is borne by the court. If the case is adjourned before the witness gives his evidence, he must be given lunch costs. (Swaran Singh v. State of Punjab C.R.L.J. 2780 SC). If the witness has been called and he is present in the court, he must be examined at any cost. The case can be adjourned without taking his evidence only under compelling conditions. (Section 309 CrPC).
The Offences under Trade Marks Act 1999, Sections 103, 104, 105 and Copyrights Act 1957 Section 63 are cognizable as per schedule I part ii (jail term of 3 yrs onwards).There is still ambiguity so police is forced to put Section 420 of IPC. Even then, sometimes the Police Officers direct the Complainant to approach the Courts by giving excuses like offence is not cognizable, they don't have time; there is no cause of action; the offender's premises are beyond their jurisdiction or no action can be taken as the trademark is unregistered.
Under section 64(1) any Police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under section 63 in respect of the infringement in any work has been, of copyright is being, or is likely to be committed" xxx. Copyrights Act 1957 "Quote that police officer "if he is satisfied" is very open ended and gives wide powers to the officer and this is not defined. This unfettered power gives the police officer a whole new domain to observe or to abstain.
Many times police refuses on the grounds that they want to conduct their own investigation first to establish that an offence is made out under the reported acts and sections before conducting the raid. Many times police refuses action on the grounds that the papers like power of attorney or copyright registration are not in order. They fail to appreciate 2 main grounds: (1) Registration is not a mandatory requirement for police action under Copyrights Act 1957. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright & registration is discretionary (section 45). Section 51 of the Copyrights Act 1957 does not require mandatory registration for action against piracy. The Act simply only says that you may register (section 45 of Copyrights Act 1957). This needs immediate redressal. Colarable exercise of power by police must be controlled. Mechanical action devoid of application of mind is prohibited as per administrative law.
In a landmark judgement by Supreme Court, the verdict was declared by a five judge Constitution bench led by Chief Justice P Sathasivam. The bench, in its ruling, stated that adequate disciplinary action must be taken against all police officers who fail to register a First Information Report (FIR) on complaints against cognizable offence (Lalita Kumari V Govt. of U.P.).Police many times refuses to file FIR despite protection provided by law.
Moreover false information to Police can lead to FIR against the complainant under Section 177/182 & 211 of IPC. Police officer should immediately proceed for raid on being informed that a cognizable offence is being committed irrespective of any papers etc. Other details like papers and authority is a matter of investigation and it is required at evidence stage only.
Police must immediately proceed to the crime scene to investigate all infringement related offences without being overly concerned with the papers etc.
Truth shall reveal itself to the police in the first instance in most cases especially where infringement of well known brands is reported.
These investigations by police must result in full unearthing of the goods trail up to godowns, distributors, manufacturers/assemblers, financiers and the kingpins in most cases unlike the scenario today where in 95% cases, nothing at all gets unearthed. Upon failure, magistrates must call for case daily diary and interrogate the IO. Police must reveal as to why they utterly failed to get ahead in most cases. This is the prime reason because of which now Companies facing infringement problems always insist that a minimum seizure must happen or only manufacturers or big godowns must be targeted for raids. Companies must not spare sellers of even little number of duplicate products. Police must ensure that they uncover the entire channel of distribution up to manufacturer in each case irrespective of the size of the seizure.
In fact movies and music piracy is thriving due to this lacuna. All small street side vendors sell pirated stuff without fear because they keep just 10-12 DVDs at a time and companies do not want to stop them as their policy permits raiding only big fishes. If availability is not curtailed 100%, then pirated products will percolate from different sources. So all companies must ensure total destruction of availability including small pirates for ensuring piracy free markets. Raids are not the only solution against such small pirates.
Though the Offences under the provisions of the Trademarks Act and Copyright Act 1957 are cognizable, non-bailable and non-compoundable, experience has shown that the penal provisions of the Act are non deterrent due to lack of severity, lack of convictions and abysmal enforcement by the police.
We must have a government or privately funded i.e. FICCI whistle blower reward scheme against Brand piracy to ensure it is nipped in the bud.
We also need to have a reward scheme based on number of seizures for police officers who show exemplary efficacy in controlling piracy in their areas. Private companies should hold training seminars apart from giving rewards to honest police officers so that suo motu raids on Brand pirates can increase.
We have to understand that to control piracy, you must make it a commercially unviable or losing proposition. Piracy only prospers when "REWARDS OUTWEIGH THE RISKS".
By proper enforcement of IPR laws, constitution will make the ends of justice meet in a more meaningful manner, in line with the legislative intent at the time of framing and approving and enacting them.
Companies must also take initiative by rehabilitating the offenders caught in piracy cases under their CSR budgets. This will give an alternative to those offenders who want to stop but do not have any knowledge of any other vocation.
Today, restorative justice is largely missing. Criminal remedy of retributive justice has to be stringent enough to be a deterrent and that is absent in IPR laws of India in letter as well as in practice.
Infringers and Brand Protectors are fighting a constant battle all over the world. Each tries to outsmart the other. No form of Brand protection is ultimate. Infringers eventually find a way to circumvent the brand protection challenge. So we must keep on innovating brand protection methods and must remain one step smarter to contain piracy. This will contribute to the national economy significantly and that will also be a boon for India.
This article has come from me after combating brand infringement issues for the last 20 yrs all across India. I have conducted hundreds of "hands on" raids apart from many more through agencies in every state of India from Port Blair to Srinagar. Currently, I'm associated with "Pinkerton", India as Brand Protection Advisor. I'm a writer on Brand Protection issues and I also train corporate sales teams on Brand Protection.
PhD Research scholar ( Law) at Mewar University, Chittorgarh, Rajasthan under Guidance of Professor Dr S.K. Pandey
Disclaimer - The views expressed in this article are the personal views of the author and are purely informative in nature.