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Section 78 – The Trade and Merchandise Marks Act,1958

The Trade and Merchandise Marks Act,1958

Section 78. Penalty for applying false trade marks, trade descriptions, etc

(a) Falsifies any trade mark; or

(b) Falsely applies to goods any trade mark; or

(c) Makes, dispose of, or has in his possession, any die, block, machine, plate or other instrument for the purpose of falsifying, or of being used for falsifying, a trade, mark; or –

(d) Applies any false trade description to goods, or

(e) Applies to any goods to which an indication of the country or place in which they were made or produced or the name and address of the manufacturer or person for whom the goods are manufactured is required to be applied under See. 117, a false indication of such country, place, name or address; or

(f) Tampers with, alters or effaces an indication of origin which has been applied to any goods to which it is required to be applied under Sec. 117; or

(g) Causes any of the things above mentioned in this section to lie done, shall, unless he proves that he acted without intent to defraud, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both:

Provided that where the offence under this section is in relation to goods or any package containing goods which are drugs within ” the Hearing of Cl. (b) of Sec. 3 of the Drugs and Cosmetics Act,1940 (23 of 1940) or “food” as defined in Cl. (v) of Sec. 2 of the Prevention of Food Adulteration Act,1954 (37 of 1954) the offender shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

APPLICABILITY OF SEC. 300-(I), C.R.P. C. -In the instant case, the seizure of different bundles of beedies from the premises in question indicates that the person responsible for manufacturing those beedies was guilty of violating three different registered trade marks. The infringement of such trade mark was a separate and distinct offence under Sees. 78 and 79 of the Trade and Merchandise Marks Act,1958. That being so, the learned Magistrate was clearly in error in coming to the conclusion that sub-section (1) of Sec. 300 of the Code was attracted. In fact, the accused were never tried nor could they have been tried for the infringement of the trade mark belonging to the petitioners principal in the earlier two cases. Those two cases dealt with distinct and separate offences pertaining to two different trade marks. The learned Magistrate was in error in thinking that the case fell within the purview of sub-section (1) of Sec. 300 of the Code.1

PENAL PROVISION. -The law in its wisdom seeks to punish the guilty who commits the sin, and not the person who is innocent.2


1. Mangalprasad Jethalal Upadhyay v. Thakkar Anaji Ranchhoddas,1983 Cr. L.J. 309 at pp. 312, 313: Sumeet Machines P. Ltd. v. Sumeet Research and Holdings Ltd.,1993 L.W. (Cr.) 40 at p. 47 (Mad.).

2. A.B Sulochana v. c. Dharmalingam, A.I.R. 1987 S.C. 242 at p. 244.

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The Trade and Merchandise Marks Act,1958

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