The Offences Under the Act

In one line

Falsifying or falsely applying an indication, and selling goods carrying one, each carry six months to three years and fifty thousand to two lakh rupees, doubled at the bottom end on a second conviction, while falsely claiming registration is now a civil penalty and no longer a crime.

Why the Act is criminal at all

The Designs Act creates no offences. Chapter 220 says so. This Act creates several, and the reason is the nature of the wrong: a false geographical indication deceives the public, not merely a competitor, and the producers who are harmed are usually too small to litigate.

So the State prosecutes. Sections 39, 40 and 41 are cognizable by section 50(3), and a police officer not below the rank of Deputy Superintendent may search and seize without warrant under section 50(4). Chapter 560 works the procedure.

Section 38: what falsifying and falsely applying mean

Section 38(1), falsifying. A person falsifies a geographical indication who either

• (a) without the assent of the authorised user, makes that geographical indication or a deceptively similar one; or
• (b) falsifies any genuine geographical indication, whether by alteration, addition, effacement or otherwise.

Section 38(2), falsely applying. A person falsely applies a geographical indication to goods who, without the assent of the authorised user,

• (a) applies the indication or a deceptively similar one to goods or to any package containing goods; or
• (b) uses any package bearing an indication identical with or deceptively similar to the authorised user's, for packing, filling or wrapping any goods other than the genuine goods of that authorised user.

Section 38(3). An indication falsified under (1) or falsely applied under (2) "is in this Act referred to as a false geographical indication".

Section 38(4), the burden. "In any prosecution for falsifying a geographical indication or falsely applying a geographical indication to goods, the burden of proving the assent of proprietor shall lie on the accused."

Section 38(4) is a reverse burden and it is worth a paragraph in an answer. The prosecution proves the making or the application; the accused must prove that it was with assent. That is unusual in criminal law and it exists because assent is a fact peculiarly within the accused's knowledge.

Section 39: the penalty for applying a false indication

Six acts are punished. Any person who

• (a) falsifies any geographical indication;
• (b) falsely applies to goods any geographical indication;
• (c) makes, disposes of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying, or for being used in falsifying, a geographical indication;
• (d) applies a false indication of country, place, name or address to goods to which such an indication is required to be applied under section 71;
• (e) tampers with, alters or effaces an indication of origin applied under section 71; or
• (f) causes any of those things to be done,