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INDIAN COUNTERFEITS


legislation, including the Trade Marks Act of 1999, the Copyright Act of 1957, the Patents Act of 1970, the Designs Act of 2000, the Geographical Indication of Goods (Registration and Protection) Act of 1999 and the Customs Act of 1962.


Te Customs Act provides for the protection of IPRs against cross-border movement of counterfeit goods. India has also signed Customs Mutual Assistance Agreements with major trade partners, including the European Union, United Kingdom, United States, China, South Korea, Australia, Russia, Brazil and South Asian Association of Regional Cooperation (SAARC), which establish formal guidelines and allow officials to share intelligence and data related to IP violations.


Recently, India has notified the Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007, which aim to strengthen the legal framework for IP and customs laws. It complies with border control measures as required by the TRIPs agreement. Keeping in tune with international practice, the IPR (Imported Goods) Enforcement Rules, 2007, empower customs officers in India to enforce the IP law.


Te Indian judiciary has also begun taking a very pragmatic approach to counterfeiting. Te courts are imposing responsibility on customs officials to prevent, control and prohibit the import of goods that violate IPRs. In Adobe Systems, Inc. & Anr. v Mahindra Saxena & Anr, the Delhi High Court held that counterfeiting does not only cause financial losses but also amounts to deception of the public at large and that, at the same time, the government is losing revenue, since counterfeiters neither maintain account books nor pay taxes. In CISCO Technologies v Srikant, the Delhi High Court held that statutory authorities should prohibit the import of goods that results in or assists the violation of a trademark owner’s proprietary interest, and it also highlighted the need to fight counterfeiting at the borders. In order to provide timely relief to victims of counterfeiting, the courts have also started granting ‘John Doe’ orders, which operate against infringing goods and any potential defendant who is subsequently identified as the counterfeiter. One such order was granted by the Delhi High Court in Taj Television Limited v Rajan Mondal. Another landmark case was Time Warner Inc. v Lokesh Srivastava & Anr., in which the Delhi High Court granted punitive as well as


exemplary damages in addition to compensatory damages to highlight the fact that breaching IPRs is a wrong done not only to one party but also to society as a whole and to consumers who suffer due to such deception.


Counterfeiting is a criminal menace and customs, trading standards, the police and the courts are working hard to bring the criminals engaged in this activity to justice. Brand owners have formed a common forum, the Brand Protection Committee, under the aegis of the Federation of Indian Chambers of Commerce and Industry (FICCI) to work co-operatively with the government, industry, trade associations, companies and various organisations, including consumer protection groups in order to tackle counterfeiting and piracy in India. Brand owners are also fighting counterfeits of their products by conducting raids and investigations with alacrity alongside government officials. Tey are also creating awareness programmes.


Recommendations


FICCI and KPMG in India have made some recommendations based on a survey among


38 World Intellectual Property Review May/June 2011


www.worldipreview.com


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