1. CASE STUDIES IN LEGAL PURVIEW CUSTOMS AND CROSS-BORDER
MEASURES
2. IP Enforcement-Remedies Civil Infringement Passing off
Criminal Administrative Technological measures
3. Civil Litigation- Objective To provide compensation to the
right holder To prohibit future infringement Appropriate disposal
of infringing material and all tools/ plates / dyes used for
manufacturing the same.
4. Civil Action: Reliefs Injunctions against violations Raids
& Seizures Damages OR Accounts of Profits Delivery up/
Discovery of infringing material / documents Preservation of assets
Copyright owner- Infringing material is deemed to be his
property.
5. Interim / Interlocutory Injunction Often the real remedy
Objective: To maintain status quo Time is of essence Factors
considered in granting : Prima facie case Balance of convenience
Irreparable injury if injunction not granted Gujarat Bottling
Company v. Coca Cola 21 IPLR 201
6. Interlocutory injunction Statutory recognition Importance is
also recognized by the judiciary Landmark Supreme Court
judgments
7. Wander Ltd. & anr. vs. Antox India P. Ltd.(1990 (2)
ARBLR 399 SC, 1990 Supp (1) SCC 727)Supreme Court on interlocutory
injunctions:Usually, the prayer for grant of an interlocutory
injunction is at a stage when the existence of a legal right
asserted by the plaintiff & its alleged violation are both
contested The object is to protect the Plaintiff against injury by
violation of his rights for which he could NOT adequately be
compensated in damages recoverable in the action if the uncertainty
were resolved in his favour at the trial.
8. Wander Ltd. & anr. vs. Antox India P. Ltd. 1990 (2)
ARBLR 399 SC, 1990 Supp (1) SCC 727Supreme Court on Balance of
Convenience:The need for such protection must be weighed against
the corresponding need for the defendant to be protected against
injury resulting from his having been prevented from exercising his
own legal rights for which he could not be adequately be
compensated. The Court must weigh one need against another and
determine where the balance of convenience lies.
9. Midas Hygiene Industries P. Ltd. V. Sudhir Bhatia &
Anr.(2004 (73) DRJ 647, 2004 (28) PTC 121 SC)Supreme Courtin cases
of infringement either of trademark or of copyright normally an
injunction must follow. Mere delay in bringing the action is not
sufficient to defeat grant of injunction in such casesthe grant of
injunction also becomes necessary if if it prima facie appears that
the adoption of the mark itself was dishonest.
10. Lakshmikant V. Patel vs. Chetanbhat Shah(December,
2001)Supreme Court: In an action for passing off it is usual,
rather essential to seek an injunction, temporary or
ad-interimproof of actual damage is not essential likelihood of
damage is sufficientan absolute injunction can be issued
restraining the defendant from using or carrying on business under
the Plaintiffs distinctive trademark.
11. Enforcement of IPRs - Trademarks Indian Courts have applied
and expanded principles of trans-border reputation even if: The
Plaintiff has no presence in India The goods of the defendant are
entirely dissimilar (dilution principle recognized) Provided
knowledge of the mark acquired through various sources of
trans-border reputation
12. Enforcement- Domain names M/s Satyam Infoway Ltd. V.
Sifynet Solutions Pvt. Ltd. (2004) 6 SCC 145 SC has held that
domain names are subject to the legal norms applicable to other
intellectual properties, such as trademarks. Yahoo Inc. v. Akash
Arora 1999 PTC 201 SC applied general trademark law to the
internet.
13. Ex Parte Order When the matter is extremely urgent At a
preliminary hearing of the interim application without notice to
the answering defendant. Granted before the motion for interim
injunction is fully heard but for a limited period only. After
grant of ex parte injunction, the Court must proceed with disposal
of the interim injunction application after the defendant has
14. Ex Parte Orders Injunction; Discovery of documents;
Preserving of infringing goods, document of other evidence related
to the subject matter of the suit; Restraining the defendant from
disposing off his assets in a manner which may adversely affects
rights of the IP owner to claim damages, costs or other pecuniary
remedies.
15. Anton Pillar Order Anton Pillar v. Manufacturing Process
(1976) RPC 719 Similar to ex parte interlocutory order After a
hearing, Court authorizes plaintiff to inspect premises of
defendant and take inventory of the offending material
16. Anton Pillar Orders Sensitive in nature Pre conditions for
grant: Extremely strong prima facie case Damage (potential or
actual) very serious Clear evidence that defendants have in their
possession, incriminating document/ material which they may
destroy.
17. John Doe Order Court appointed commissioners to enter the
premises of any suspected party and collect evidence of
infringement. Suspected party may not be named in the suit. Indian
Courts have conferred expanded powers to commissioners- Roving
commissioners Ardath Tobacco Co. Ltd. vs. Mr. Munna Bhai &
Ors.
18. Mareva Injunction Freezing order Prevents the infringer /
offender from removing / disposing of assets in which the gains
from infringement have been invested. Aim- unjust enrichment of the
defendant and to ensure payment of damages to Plaintiff
19. Final injunction To ascertain rights of the parties
Remedies for Breach of injunction Police assistance Assistance of
administrative bodies Contempt proceedings
20. Damages / Account of Profits These are mutually exclusive
alternative remedies Account of profits- An equitable relief
Plaintiff adopts defendants acts as his own. Damages- for the
losses suffered by the Plaintiff on account of the defendants
acts
21. Damages- recent trends Time Inc. vs. Lokesh Srivastava
Punitive damages awarded for the first time Rs 5 lakhs Distinction
between compensatory damages and punitive damages was made
out.
22. Time Incorporated vs. LokeshSrivastavaDelhi High Court:The
award of compensatory damages to a plaintiff is aimed at
compensating him for the loss suffered by him whereas, punitive
damages are founded on the philosophy of corrective justice and as
such, in appropriate cases these must be awarded to give a signal
to the wrong-doers that law does not take a breach merely as a
matter between rival parties but feels concerned about those also
who are not party to this but suffer on account
23. Damages- recent trends Microsoft Corporation vs. Yogesh
Papat & anr. 2005 (1) CTMR 424 Highest costs and Damages ever
awarded for IP infringement by Indian Courts Approximately Rs 20
lakhs
24. Criminal Remedies- TM Falsification of Trademarks /
Infringement of copyright is a criminal offence A complaint may be
filed before a Magistrate; OR Police can register an FIR and
prosecute directly; (statutory requirement to obtain the Registrars
approval. Registration is not a requirement.
25. Criminal Remedies- TM/ CR Cognizable offence Imprisonment-
6 months to 3 years Fine- Rs 50,000 to 2 lakhs Enhanced penalty on
subsequent convictions. Seizure, forfeiture and destruction of
infringing goods/ material for placing before the Magistrate.
26. Civil vs. Criminal Less hassle for the plaintiff
Jurisdictional advantage Interlocutory Injunctions Damages
Possibility of settlementHowever No deterrence No fear factor- no
arrest Expensive & lengthy
27. Administrative Remedies Indian Customs Act, 1962 Deals with
import/ export of goods including protection of patents, trademarks
and copyrights. Confiscation of infringing material by Excise
Authorities Restrictions against parallel importation of goods
29. Enforcement of IPRs TM CaseStudies. M/S HITACHI VS AJAY KR.
AGGARWAl 1996 PTC(16) (DB)HITACHI=HITAISHI. AMRUTANJAN LTD. VS
AMARCHAND SOBACHAND PTC(Suppl.) (1) 230(Mad)-AMRUTANJAN PAIN BALM=
AMARS PAIN BALM. RUSTON & HORNBY LTD. VS ZAMINDARA ENGINEERING
CO. AIR 1970 SC 1649RUSTON= RUSTAM INDIA.
30. CONTD. K.R. CHINNA KRISHNA CHETTIAR VS SRI AMBAL & CO.
AIR 1970 SC 146- SRI ANDAL = SRI AMBAL. M/S PIDILITE IND. PVT.LTD.
VS MITTEES CORP. AIR 1989 DELHI 157- FEVICOL= TREVICOL. COLGATE
PALMOLIVE CO. VS SUNDEEP ENTERPRISES 1995-PTC-10.HARRISON= HARICON.
LAKME LTD. VS SUBHASH TRADING 1996 PTC(16) 567LAKME= LIKEME.
31. IMITATION DOES NOT MEANDUPLICATION-DESIGNJUDGEMENT The
landmark CASTROL VS TIDEWATER found the Indian courts uphold a
major design justiciablity that mere duplication does not really
amount to duplication. HIGH COURT OF CALCUTTA Suit No. 415 of 1993
Ordinary Original Civil Jurisdiction Castrol India
Ltd...............Petitioner Versus Tide Water Oil Co. (I)
Ltd................Respondents Ruma Pal, J. Decided on : August 26,
1994 The sequence of the obligation of the court in considering an
application for infringement of a design is first to consider
whether protection is claimed in respect of a design or of the mode
of manufacture. The first is protected by the Design Act 1911 and
the second by the law of patents.
32. INFRINGEMENT BY SUBSEQUENTPATENT?? In the famous landmark
case of HINDUSTAN UNILEVER LTD VS LALIT WADHWA 200735 PTC DEL, its
was held by the court that the RIGHT OF PATENTEE IS ONLY AN
EXCLUSIONARY RIGHT. The court also held under the ambit of sec.64
of Patents Act, that whenever a subsequent patentee brings a suit
for infringement then every ground on which it may be revokes under
sec 64, all of them shall be availaible as grounds for defence.
This means that when a subsequent patentee brings a suit for
infringement against an earlierpatent holder, then the earlier
patent holder can claim priority date as a valid defence.
33. COPYRIGHT- IDEA VS.EXPRESSION DICHOTOMY R.G. ANAND V. DELUX
FILMS (1978) There can be no copyright in an idea, subject matter,
themes, plots, or historical or legendary facts and violation of
copyright in such cases is confined to form, manner, and
arrangement and expression of idea by the author of copyrighted
work. One of the safest and surest test to determine whether or not
there has been a violation of copyright is to see if the reader,
spectator or the viewer after having read or seen both works is
clearly of the unmistakable opinion and gets the impression that
subsequent work appears to be a copy of original. As a violation of
copyright amounts to an act of piracy it must be proved by clear
and cogent evidence after applying the tests of equity.
34. CONTD.MR. ANIL GUPTA AND ANR. V. MR. KUNAL DASGUPTA AND ORS
[97(2002) DLT 257] Court held that the concept developed and
evolved by the plaintiff was a the result of the work done by the
plaintiff upon the material which may be available in the public
domain. However, what made the concept confidential was the fact
that the plaintiff had used his brain and thus produced a unique
result applying the concept. The Court granted an injunction.KING
FEATURES SYNDICATE INC VS SUNIL AGNIHOTRI & ORS ( 1997 PTC (17)
In this case there was a dispute on use of BETAAL & PHANTOM
wherein the court refused the injunction on the grounds that there
is no copyright in an idea/title- defendant inspired only by idea
but expression is original.RAJA POCKET BOOKS VS RADHA POCKET BOOKS(
1997 PTC (17) NAGRAJ NAGESH DISPUTE ON SIMILARITY OF COMIC
CHARACTERS.HINDUSTAN PENCIL PVT LTD VS UNIVERSAL TRADING
COMPANY(1999PTC(19)This case law establishes the test of copyright
infringement wherein it has been established that in case there are
very minor differences between two works and the get-up and colour
combination are copied per se then it shall amount to copyright
infringement.
35. REGISTRATION NOT MANDATORYFOR PROTECTION OFCOPYRIGHT GLAXO
OPERATIONS UK LTD. VS- SAMRAT PHARMACEUTICALS,. AIR 1984 Delhi 265!
THIS IS A LANDMARK JUDGEMENT WHEREIN IT HAS BEEN ESTABLISHED BY WAY
OF ADJUDICATION THAT REGISTRATION OF COPYRIGHT IS NOT MANDATORY FOR
SEEEKING REMEDY FOR INFRINGEMENT OF COPYRIGHT. REMEDY PERTINENT TO
COPYRIGHT IS AVAILAIBLE EVEN WOTHOUT REGISTRATION AMBITS.
36. NEED FOR CUSTOMS LAWS IN THE FIRST PLACE Customs is an
authority or agency in a country responsible for collecting and
safeguarding customs duties and for controlling the flow of goods
including animals, transports, personal effects and hazardous items
in and out of a country. Depending on local legislation and
regulations, the import or export of some goods may be restricted
or forbidden, and the customs agency enforces these rules. In
India, the basic law for levy and collection of customs duty is
Customs Act, 1962. It provides for levy and collection of duty on
imports and exports, import/export procedures, prohibitions on36
importation and exportation of goods, penalties, offences,
etc.
37. CUSTOMS PROVISIONS TO CONTROL COUNTERFEIT MENACE Customs
Act, 1962 prohibits import of goods that infringe intellectual
property. Section 11 of the Act empowers the Central Government,
for the purposes specified in subsection 11(2), to prohibit import
or export of goods of any description by issuing a
notification.37
38. EFFICACY OF 2007 RULES IN GOOD LEGAL MEASURE Cases of
suspension of goods by Indian Customs The Customs department, in
July 2008, ordered absolute confiscation of counterfeit goods in
the matter concerning the importer M/s. Womens World Jewels Pvt.
Ltd., and M/s. Impac Enterprises who imported consignment
containing cosmetics, gift items etc., bearing registered
trademarks Nivea, Dove, Sunsilk and LOreal. Commissioner of Customs
noting that the act of importing into India and/or market these
goods in India without having any authorization from the
manufacturers, amounted to infringement of rights of right holders
and thus prohibited the importer from importing the goods.38
39. Contd. Another order was passed in 2008 against M/s P.S.
Grover and Sons for importing cosmetic and toiletries products of
registered trademark LOreal and Garnier for importing without first
having obtained authorization from registered trademark owners M/s
LOreal and M/s Laboratoire Garnier & CIE. The Customs
Department not only ordered confiscation of imported goods but also
imposed huge penalty of Rs 25,000/- on importer and also Rs 5,000/-
on partner of importer.39
40. ISSUES RAISED BY IMPLEMENTATION OF RULES The Ram Kumar
Patent Saga This litigation involves a patent granted to Mr. Soma
Sundaram Ram Kumar on a Mobile telephone with a plurality of SIM
cards allocated to different communication networks. Mr. Ram Kumar
sought to enforce the patent rights against a number of
multinational and national importers including Hansum India,
Samsung and Micromax. Mr. Ram Kumar filed an application in the
Chennai Patent office on March 4, 2002 containing 4 claims and 12
drawings and was allotted Patent Application No. 161/MAS/2002 which
was granted in 2008. Mr. Ram Kumar, then filed an application under
Rule 3 of the Intellectual Property Rights Intellectual Property
Rights (Imported Goods) Enforcement Rules, 2007. Mr. Ram Kumar
filed an application on December 8, 2008 with the Officer of
Commissioner of Customs under the Customs Notification No. 47/2000
read with Circular No. 41/2007 Customs Circular dated 29.10.2007
called the Instructions for Implementation of Intellectual Property
(Imported Goods) Enforcement Rules, 2007.40
41. CONTD. The first course of litigation before the Indian
Courts was with respect to the constitutionality of the Rules. In
this petition, Samsung raised the issue of lack of expertise of the
Customs authorities. However, the petition had to be subsequently
withdrawn for the lack of territorial jurisdiction. The second
course of litigation was before the Madras High Court, wherein Mr.
Ram Kumar sought a restraining order against manufacturers such as
Samsung, Micro Electronics and Spice Mobile, restraining them from
manufacturing and selling multiple SIM holding mobile phones. The
third course of litigation was before the customs authorities and
highlights the concerns on behalf of the importers. The claims
related to dual SIM which allowed simultaneous communication
multiple headsets41
42. CONTD. The Chennai customs authority upheld the contentions
of Hansum India Ltd. Holding that the claim 1 of Mr. Ram Kumar
patent had limited scope. The claims, therefore, were held not to
be infringed by the cell phones manufactured by Hansum since these
cell phones used a single headphone/earphone jack. Similarly, the
New Delhi customs authority, in an order dated 8th June, 2009, by
J.P. Kundu, the Assistant Commissioner of Customs, found that claim
made by Mr. Ram Kumar was vexatious and the impugned goods were
covered by the prior art declared by him. Against the orders of
customs authorities, Mr. Ram Kumar filed writ petition in the
Madras High Court, dismissing the petition, held that the proper
forum for the redressal was the Customs Appellate Tribunal, an
authority envisaged as the appellate authority under the Customs
Act, 1962. Therefore, at present, the orders of the Customs
administration allowing the clearance of the goods from the Mumbai,
Chennai and Delhi ports stand affirmed and, the stand of the
importers has been upheld.42
43. FAMOUS CISCO ADJUDICATION The case involving parallel
imports and trademarks in India, Cisco Technology Vs Shrikant (2005
PTC 538 DEL.) the plaintiffs employed sec. 29(6) (c) of custom act
read with sec 140 defense and were successful in getting an exparte
order directing the customs authorities to notify all ports to bar
imports of defendant goods and also appointing a local commissioner
to seize all goods bearing the mark in issue and inventory the
same.43
44. PARALLEL IMPORTS- A TRADE MENACE A parallel import is a non
counterfeit product imported from another country without the
permission of the intellectual property owner. Parallel imports are
often referred to as grey product, and are implicated in issues of
international trade, and intellectual property. Parallel
importation infringes the right of the right holder who has the
exclusive right to trade in such goods under the trade mark in a
particular area.44
45. OLD SAMSUNG CASE(2006) In the Judgement of the Delhi High
Court in Samsung Electronics Company Ltd. & Anr. vs G.Choudhary
& Anr(( MANU/DE/3161/2006) defendants, who were the parallel
importers were held liable for infringement of Trademark. The
registered owner of the Trademark Samsung filed a suit against the
defendants for importing from China and selling in cartridges and
toners branded Samsung manufactured by the plaintiff itself in
China. The plaintiff argued that although the products are genuine,
they were not meant for Indian markets. The reasons by the
plaintiff included that the descriptions that accompanied the
products were in Chinese, there was no warranty offered and that
the use of these products were likely to constitute a breach of
warranty of other legally purchased machinery.45
46. THE NEW SAMSUNG CASE(2012) In FEB 2012, the Delhi High
Court, in the famous SAMSUNG ELECTRONICS VS KAPIL WADHWA AND ORS
CASE, ruled that selling genuine imported products in India without
the rights holders consent constitutes infringement. If the
Division Bench of the Court upholds that decision in favour of
Samsung brand owners should find it easier to stop grey goods
reaching the Indian market. IP owners and lawyers have welcomed
this ingenuous ruling. The 1st plaintiff in the case, was Samsung
Electronics Company Limited, Korea and the 2nd plaintiff was its
Indian subsidiary and exclusive licensee in India. The 1st
plaintiff produced records to show 7 registrations for the mark
SAMSUNG across46 classes 7, 9 and 11.
47. CASE HIGHLIGHTS & KEY LAW FACTS The questions primarily
arising were: 1. Does sale of imported, genuine products without
consent of the right holder in India, constitute infringement under
section 29(1) read with 29(6)? 2. Does section 30(3) recognise
national exhaustion or international exhaustion? 3. Does meta
tagging and deep hyperlinking of a registered trademark constitute
infringement?47
48. Law facts In answering the first question, the Court held
that any importer who is not a registered proprietor or permissive
right holder, even if importing genuine products, is culpable of
infringement. There is also an interesting observation that had the
legislative intent been to facilitate free movement of goods,
section 29(6) would have not existed at all. These fetters on the
right of importation of genuine goods, is justified on the basis of
section 29(1), which does not provide any distinction between
genuine and non-genuine goods. In the absence of any legislative
provision or exception for genuine imported goods, such importation
is48 deemed to be an act of infringement.
49. Exhaustion theory In answering the second question, the
Court held that section 30(3) recognizes only national exhaustion
in India. The section is interpreted to mean that once goods are
acquired by a person from the registered proprietor within the same
market, the registered proprietor cannot turn around and state that
there in an infringement of his trademark on the count that there
is change of ownership by way of an assignment between the
registered proprietor and some other person and seek prohibition on
the dealings of the goods. This cannot subsume in favour of a
person acquiring goods from a foreign market. The implication and
effect of section 30(3) is stated to be limited to acquisitions
within the domestic market. Section 30(3) permits an exception only
on those goods which bear registered trademarks, and are acquired
lawfully, and the word lawfully is to include the trademark law in
force. The only market for the purpose of section 30(3) is deemed
to be the Indian market. The Court unequivocally held that section
30(3) does not recognize any concept of international exhaustion,
and the section operates only within the market where the
registration of the mark extends. There is also considerable
discussion on the UK, EU and American concepts of exhaustion. The
Xerox case is distinguished on the basis that it dealt with second
hand imported goods and is on a different set of facts and
circumstances.49
50. HYPERLINKING AND META- TAGGING On the issue of meta tagging
and deep hyper linking of registered trademarks, the Court held
that the promotion on the basis of the same in order to take
advantage of the plaintiffs registered trademark cannot in any
manner be categorized as fair use, and would tantamount to an act
of infringement.50
51. WARNER CASE In another landmark case, the Delhi High Court,
in the TimeWarner Inc. vs Lokesh Srivastava & Another(2005 (30)
PTC 3 (Del.).), awarded punitive and exemplary damages, in addition
to compensatory damages for flagrant infringement of trademarks and
copyrights. This stringent action was taken by the court to
highlight the fact that the breach of IPRs was a wrong done not
only to the plaintiff but also to the society at large and the
consumers who suffer on account of that deception.
52. DELL CASE- CONJURINGCONTROVERSY Recently, it has been
reported that the Commissioner of Customs has not only allowed the
parallel imports of Dell computers into the country but also
ordered Dell to pay demurrage & warehousing charges to the
importers whose goods had been seized for over two months due to a
complaint made by Dell. The DELL order has whipped up controversy
wherein the Customs Commissioner has allowed the parallel import of
Dell computers into India on the grounds that the Trade Mark Act,
1999 did not forbid such imports.
53. DELL CASE FACTS The basic facts of the case are simple.
Three Indian importers, by the names of Venktron Digital Systems
Pvt. Ltd., M/s Sapphire Micro System & Momentum Technologies
Inc. Pvt. Ltd. were in the process of importing approximately
450-500 Dell laptop computers into India. During the process of
clearing the consignment at Customs, an alert was registered under
the IPR Import Rules for possible trademark infringement, due to a
prior registration, under the IPR Import Rules, 2007 for the mark
Dell, by Dell India Pvt. Ltd.
54. CONTD. After the clearance of the consignment was suspended
under the IPR (Imported Goods) Enforcement Rules, 2007, a
representative of Dell India was allowed to inspect the consignment
to confirm possible infringement after which a formal hearing was
held where both, the importers and Dell India were afforded an
opportunity to be heard. During the course of the hearing before
the Customs Commissioner, the Delhi High Court pronounced its order
in the Samsung case prohibiting parallel imports under the Trade
Marks Act, 1999. Apart from the Samsung order, the rights holder,
Dell, also brought to the attention of the Court several other
judgements from Indian and foreign courts on the subject of
parallel imports being barred under Indian law. The Defendants for
their part discussed several case law- including the new Samsung
case, supporting their defence that Section 30(3) of the Trade
Marks Act, 1999 allowed for parallel imports.
55. ISSUE OF CONCERN The major issue however with the Delhi
High Courts Samsung order was that it had been appealed and the
Division Bench hearing the appeal had passed a series of orders
during the course of the appeal, which by the way is still pending
final arguments. While the importers tried to argue that the
Samsung order had been stayed by the Division Bench, the
rights-holder tried to argue that the Division Bench had not yet
stayed the operative part of the Samsung order.
56. DELL ORDER
57. INTERNATIONAL FOCUS ONCUSTOM IMPORT RULES Various countries
in the world have of late been focusing on formulation and
implementation of stringent rules in order to control counterfeit
trade. International organisations like the World
IntellectualProperty Organisation (WIPO), the WCO and
theInternational Criminal Police Organisation (INTERPOL),along with
the business community, are toiling hard multilaterally to
determine new strategies to fight against
58. Principle Socio-economic Effects ofCounterfeitingINNOVATION
& GROWTH Reduction in incentives to innovative - Possible
negative effects on medium and long term growth ratesCRIMINAL
ACTIVITY Increase in flow of financial resources to criminal
networks, thereby increasing their influence in
economiesENVIRONMENT Sub-standard infringing products can have
negative environmental effectsEMPLOYMENT Shift of employment from
rights holders to infringing firms. Child labour
59. CHINA MILK CONTROVERSY-HEALTH HAZARD OFCOUNTERFEITANCE The
2008 Chinese milk scandal was a food safety incident in the Peoples
Republic of China, involving milk and infant formula, and other
food materials and components, adulterated with melamine. By
November 2008, China reported an estimated 300,000 victims, with
six infants dying from kidney stones and other kidney damage, and a
further 860 babies hospitalised.The chemical appeared to have been
added to milk to cause it to appear to have a higher protein
content. This is clearly an incident of poor quality additives to
,milk causing huge health damages.
60. IMPACT OFCOUNTERFEITANCE The major effects of
counterfeiting and piracy on governments are foregone tax revenues
in the form of Sales Tax, Excise Tax, Income Tax and Customs Duty
and so on. Tax revenue losses are particularly high in certain
sectors like tobacco and alcoholic beverages where excise taxes are
high. The ASSOCHAM found that counterfeiting and piracy has robbed
the Indian government of US$31.25bn in lost tax revenue. Also,
supplementary expenses are linked with fighting counterfeiting
wherein huge amount of costs are spent with customs and related law
enforcement agencies and related judicial proceedings. Besides,
significant costs are incurred while handling seized goods.
61. WTO ON COUNTERFEITING The World Trade Organisation (WTO)
Trade Related Aspects of Intellectual Property Rights (TRIPs)
Agreement incorporates provisions intended to address the problem
of counterfeit goods in international trade. The preamble of the
TRIPs Agreement indicates that members recognise the need for a
multilateral framework of principles, rules and disciplines dealing
with international trade in counterfeit goods. In fact, Article 51,
footnote 14 of TRIPs, defines the term counterfeit trademark goods
as any goods, including packaging, bearing without authorisation a
trademark which is identical to the trademark validly registered in
respect of such goods or which cannot be distinguished in its
essential aspects from such a trademark and which thereby infringes
the rights of the owner of the trademark in question under the law
of the country of importation.
62. AIM BEHING ANTI-COUNTERFEITDRIVE To raise awareness on the
problems associated with counterfeiting and piracy; Promote better
legislation and enforcement; Enhance cooperation and co-ordination;
build capacity; and Promote solutions, particularly in the key
focus area of health and safety risks related to counterfeit
products.
