TITLE: Mihir surendrabhai shah v State of Gujarat
Decided On-: 31/07/2023
CORAM: Hon’ble Justice Mr. Ilesh Vora
INTRODUCTION- FIR under section 103 and 104 of the Act, in view of section 115(4) of the Act read with Rule 110 of the Trade Mark Rules, it is mandatory upon the Investigating Officer to obtain opinion of the Registrar for infringement of Trade Mark about infringement of the trade mark.
FACTS OF THE CASE
The petitioner operates an auto parts business in Ahmedabad City under the name and brand Rushab Automobiles. An individual named Sanjay Kumar Verma claimed to be an officer of the IPR Vigilance India Company and to have contracts with numerous businesses to file FIRs. He learned on November 25, 2013, that Rushab Automobiles, the petitioner’s and accused’s owner, was selling a duplicate Hyundai Motor Company component. Following the receipt of this tip, the complainant went to CID (Crime), Gandhinagar, and presented some supporting documentation. As a result, the police and the complainant both raided the petitioner’s store. The shop had duplicate Hyundai motor company spare parts, it was discovered. After the raid, a FIR with the reference number C.R.3432 of 2013 was filed with the Naranpura Police Station in Ahmedabad for the violation of sections 101, 102, 103, 104, and 105 of the Trade Mark Act, 1999 A charge sheet has also been filed after the investigation was finished.So, along with Criminal Case No. 305 of 2013, Criminal Case No. 96 of 2014 is still pending before the learned Metropolitan Magistrate Court.
COURT ANALYSIS AND DECISION
Advocate Mr. Sachin Vasavada would submit submissions in two parts. First of all, he would contend that in accordance with section 115(4) of the Act read with Rule 110 of the Trade Mark Rules, the Investigating Officer must obtain the Registrar for Infringement of Trade Mark’s opinion regarding the infringement of the trade mark before filing a FIR under sections 103 and 104 of the Act. The opinion has not been acquired by the investigating officer. Consequently, a statutory provision has been broken. He would also contend that a cursory reading of the FIR does not suggest that the sale of duplicate Hyundai Motor Company spare parts would constitute a violation of sections 101 to 105 of the Act.
The petition was granted, and the court quashed and overturned the FIR. According to these arguments, eminent lawyer Mr. Vasavada asserts that the FIR is illogical, improbable, and in violation of the law on its face, and that allowing proceedings to proceed under it would be an abuse of the legal system. As a result, he offers to approve this petition.
Both the knowledgeable complainant’s attorney and the knowledgeable APP are silent regarding the argument that the first informant lacks the authority to file a FIR on behalf of Hyduai Motor Company. The charge sheet papers omit any mention of the first informant’s legal right to file a complaint in accordance with the Act’s provisions.
It was attempted to be argued that the prohibition in section 115(4) of the Act, when read with Rule 110 of the Trade Mark Rules, would prevent the filing of a First Information Report (FIR) for an offence punishable under sections 103 to 105 of the Act without first obtaining a Registrar’s opinion on trade mark infringement. The charge sheet papers are silent regarding the first informant’s acquisition of this opinion.
A knowledgeable APP or knowledgeable advocate for the complainant is not qualified to explain a lacuna. It is obvious that the mandatory rules were broken when the FIR was filed. The complainant hasn’t proven that he has the legal right to file a complaint. Without first seeking the Registrar’s opinion for trademark infringement, he cannot express an opinion that the accused is using a trade mark or trade description, or falsifying and applying a complaint’s trade mark. The situation clearly violates a statutory provision, according to the circumstances.
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Written by- Steffi Desousa
