Counterfeiting and Trademark Infringement may sound similar but they are completely different concepts. Counterfeiting refers to the wrongful copying or imitation of something of value such as money, bills, currency coins etc. On the other hand, Trademark infringement also involves the wrongful copying of something that by law belongs to someone else but in addition, there is a willful breach of a law or agreement with the intent to fool or mislead.
There is a very thin line between counterfeiting and infringement of intellectual property rights, but in practical parlance, a layman may think that there is no difference at all. However, the fact is that there is a difference between the two acts even though they both involve the wrongful use or exploitation of a right that vests in someone else. To differentiate between the two, a very important component to consider is that the wrongful intent or mens rea. Mens rea is a concept in criminal law that refers to the state of mind of the accused person that is required by statute as an element of a particular crime.
Therefore, to determine whether an act of copying is a Trademark infringement or simply counterfeiting one has to get to the root of the crime to know the intention of the wrongdoer. For instance, if the intention of the wrongdoer was to pass off the object infringed as his own then it is clearly an act of Trademark infringement.
However, if the intention behind the crime is just to pass off something as genuine to garner wrongful profits then it is an act of counterfeiting. To counterfeit is to make a copy, usually with the intention to defraud or forge. Since a common principle in law is that the punishment must befit the crime, the punishments for both these crimes differ accordingly. As per Section 489A of the Indian Penal Code, anyone who counterfeits, or knowingly performs any part of the process of counterfeiting anything such as currency-note or bank notes, shall be punished with imprisonment for a term, which may extend to ten years and shall be liable to fine.
Section 489A of the Indian Penal Code states the provisions in relation to counterfeiting and the different objects of counterfeiting and the punishment for the same. For the purposes of the Indian Penal Code, counterfeiting and forging are similar crimes and are treated similarly. Provisions with respect to forging can be found under Sections 465-507.
Since India is an open economy, it is obvious that Indian Trademark Law has to work in consonance with the international system in place. Extensive review and amendment of the old law were carried out and the new Trade Marks Act, 1999 has been enacted. The said Act of 1999, with subsequent amendments, conforms to the TRIPS and is in accordance with the international systems and practices.
TRIPS is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members. Trademark infringement is the unauthorized use of a trademark or service mark on or in connection with goods and/or services in a manner that is likely to cause confusion, deception, or mistake about the source of the goods and/or services. As such, trademark infringement is a breach or violation of intellectual property rights and the owner or holder of such rights has a right to relief against the loss or damage caused to him by such infringement.
In general, the punishment for Trademark infringement is imprisonment for not less than six months and up to three years. A fine can also be levied to an amount of not less than rupees fifty thousand to a maximum of rupees two lakhs.
LetsComply can help in taking legal action against Trademark infringement of your mark by filing an infringement suit in the appropriate court. To know more, call us at +91-9717070500 or send us an email at firstname.lastname@example.org.