Section 209 of IPC has remained uncharted territory in subjects relating to intellectual property Rights, specifically bearing on alternate Trade Marks/Copyright. Each time a suit is filed or written assertion is filed, the contesting parties make big claim of consumer, but in maximum of the subjects, the party seldom documents the files substantiating the claimed person. In such situations, Section 209 IPC can be invoked by using the Hon’ble court so that party must restrain themselves from making false claim.
Section 209 Indian Penal Code: dishonestly making false claim in court
“Whoever fraudulently or dishonestly or with purpose to injure any man or woman makes in a court of justice any declare which knows to be false, will be published with imprisonment of either description or a term which can be extended upto two years, and additionally will be liable to fine.”
It’s far submitted that the Hon’ble court may take recourse of section 165 of the Indian Evidence Act 1972 to carve out the truthfulness of the announcement made by means of the events.
The provision of Section 209 IPC is penal in nature and the court should exercise precaution in applying the same in topics pertaining to Intellectual property Rights, particularly in relation to matters touching on trade mark. Section 209 IPC can be held to be relevant where it appears to the Court that the party, aside from owner of the trade mark, has wrongly and dishonestly followed the trade mark. Even though it’s very difficult to make out the instances wherein it could be held that the provisions of section 209 IPC may be held to be relevant. But here are few of the examples in which a party may be held to be punishable for the offences dedicated under Section 209 IPC.
In case of counterfeiting (meaning thereby use of identical trade mark by way of some other party, aside from the original owner/proprietor, in relation to duplicate/pirate/counterfeit product), the offence under section 209 IPC is made out as in such cases the counterfeiters are fraudulently or dishonestly make false claims within the Court as to their possession in relation to counterfeit merchandise, wherein the interest of owner of the trade mark is adversely effected.
Section 165 of Indian Evidence Act, 1872
The judge can also, to be able to discover or to gain proper evidence of applicable records, ask any question he pleases, in any shape, at any time, of any witness, or of the parties, approximately any reality relevant or irrelevant; and can order the manufacturing of any report or thing; and neither the parties nor their sellers will be entitled to make any objection to this kind of question or order, nor, without the leave of the court, to move-observe any witness upon any solution given in response to this type of question.
Usually in subjects referring to IPR (Viz: trademark), even a party is making false claim of user, that is penalizing by means of grating or vacating the Injunction. However what should be criminal liability of party making one of these false declarations has no longer been dealt with by way of the court.
An order exceeded in FAO 114/2015 through Hon’ble Mr. Justice J.R. Midha, under Sec. 209 IPC has been issued to the Appellant for making false claims. The applicable portion states as follows: “The appellant has challenged the impugned order dated 20th February, 2015 wherein he has been restrained from using the registered trademark ‘POLO’ and the device of a rider playing polo. The appellant adopted the respondent’s trademark ‘POLO’ in addition to respondent’s tool within the 12 months in 2007. This Court is of the prima facie view that the appellant has made a fake claim which amounts to an offence under section 209 of the Indian Penal Code.”
Where the trade mark of a party is an arbitrary or coined or a well known alternate mark, in such a situation adoption of similar alternate mark by means of any other party may be held to be ex-facie illegal or cheating. as an instance the trade mark like Swiss navy, Benz, Loreal, Polo, Ralph Lauren, Lakme, and so on., in which the proprietor has coined the trade mark, if another party is claiming to be proprietor of same or similar alternate mark, the dishonesty committed on the a part of different party is ex-facie and offence under Section 209 IPC is made out.
In a few instances, the owner of a trade mark use the trade mark in a different way and also makes use of logo. for instance trademark Hamdard With unique Eye logo, alternate mark Polo With logo of Polo participant, trademark Lacoste With logo of Crocodile and so on. In such instances if third party uses either similar font style, creative characteristic or the logo then the third party can effortlessly be imputed with the understanding of the original alternate mark. In such cases also the Court must initiate proceeding under Section 209 IPC.
If a party is using a mark, image or phrase or brand on their product to reveal that it’s originated from a specific country regardless of this truth that the product isn’t always originating from that country, then also it could be stated that the person is making false claims to attract the provisions of section 209 IPC. For example if a party is the user of the trademark SWISS LIGHT with flag of Switzerland , without the product originating from Switzerland , or with out being authorized to apply the flag of Switzerland, then the party is apparently liable to be punished under the provision of Section 209 IPC.
where the parties are positioned in same town, state or in close proximity with every other and are using same/comparable trademark on the subject of identical/similar products then additionally understanding at the part of subsequent adopter of trademark regarding the prior adopted and prior used trademark can effortlessly be imputed. In a nutshell if it is able to ex-facie be seen that the other party is having understanding of the earlier trademark and in spite of expertise the same keeps on the usage of the same/comparable trademark.