IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14th DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.5514 OF 2016 BETWEEN:
Sri. Dharmendra Patel S/o Ramji R. Patel, Aged about 39 years, Managing Director, M/s. Lakshminarayana Trading Company, No.18/1b, Near Gopalan Arcade, Behind Honda Car Showroom, Mysore Road, Nayandahalli, Bengaluru – 560 039. …Petitioner (By Sri. Diwakara K., Advocate) AND:
1. State of Karnataka By Byatarayanapura Police Station, Represented by: Public Prosecutor, High Court Building, Bengaluru – 560 001.
2. M/s. Greenply Industries Ltd., Represented by: Shri Rakesh Khanna, Madgul Lunge, 5th Floor, 23 Chaltha Central Road, Kolkata – 700 027.
Also at No.501, Queens Mansion, 12, Park Street, Kolkata, Calcutta Central, Div West Bengal – 700 071. ...Respondents (By Sri. Vijayakumar Majage, Addl. SPP for R1; Sri. R.R. Madhu Goud, Advocate for Sri. Sanjay H. Sethiya, Advocate for R2) This Criminal petition is filed under Section 482 of Cr.P.C. praying to quash the FIR and complaint registered by respondent No.1 in their Cr. No.48/2016 of Byatarayanapura Police Station, under Section 103C and 104 of Trade Marks Act and under Section 63 of Copyright Act and under Section 420 of IPC pending on the file of IX A.C.M.M., Bengaluru found at Annexure-A and B.
This Criminal petition coming on for Admission, this day, the Court made the following:
O R D E R Heard learned counsel for petitioner and learned Addl. SPP for respondent No.1. Proxy counsel for respondent No.2 seeks time. Prayer is rejected.
2. The main contention urged by the learned counsel for petitioner is that the allegations made in the complaint do not constitute the ingredients of any of the offences under Sections 103C and 104 of the Trade Marks Act, 1999 and Section 63 of the Copy Right Act, 1957 and also Section 420 of IPC. Petitioner has been lawfully carrying on the plywood Trading business under the brand name ‘Green Globe’ and the application filed by the petitioner for registration of the Trade Mark is pending before the Trade Mark Registration Authority since 01.09.2010 and hence, by virtue of Section 30 of the Trade Marks Act, petitioner is entitled to identify his goods with the said brand name and as such, there is no violation of any of the provisions of Trade Marks Act, 1999.
3. Insofar as the invocation of the provision of the Copy Right Act is concerned, learned counsel, referring to the relevant provision of the Copy Right Act submitted that the averments made in the complaint do not fall within the provisions of the Copy Right Act and hence, registration of FIR against the petitioner is illegal and abuse of process of the Court.
4. Learned Addl. SPP appearing for respondent No.1 argued in support of impugned action contending that the allegations made in the complaint prima-facie disclose commission of the above offence and the matter being investigated, it does not warrant interference by the Court at this stage.
5. Considered the submissions and perused the records.
6. FIR is registered against the petitioner under Sections 103C and 104 of the Trade Marks Act, 1999 and Section 63 of the Copy Rights Act, 1957 read with Section 420 of IPC based on the complaint lodged by M/s. Green Ply Industries Limited. It is a short and cryptic complaint, which reads as under:
“I Rakesh Khanna, S/o late Ram Kishan Khanna, aged about 57 years, residing at No.501, Queens Mansion, 12, Park Street, Kolkata – 700 071 respectfully submit as under: -
1. I am the Designated Authority holder of M/s. GREENPLY Industries Ltd. Having its Registered Office at Madgul Lounge – 5th Floor, 23 Chetla Central Road, Kolkata 700 027, authorized to sign, verify and file this complaint on behalf of the Company. M/s Greenply Industries Ltd has appointed me as their Authorized Representative.
2. The Company is a leading manufacturer of various varieties of ply boards, block boards and laminates and many other products all over the world.
3. The Company by virtue of the quality of its products has gained a name for itself all over the world and today millions of people are using its products believing them to be tried, tested, good quality products having high performance and, therefore, the brand name of Greenply enjoys an unparalled and great reputation and goodwill all over the world.
4. While conducting a Market survey on 18.01.2016 at about 13:00 hours we have become aware of certain stocks of spurious material by the name of GREEN GLOBE lying in the position of Mr. Dharmender Patel of Lakshmi Narayana Tading Co located at No.18/1B, Near Gopalan Arcade, Behind Honda Car Showroom, Mysore Road, Nayandahalli, Bangalore – 560 039 and we would request you to kindly grant us your assistance to conduct a raid so that the spurious material can be seized.
5. The parties have full knowledge of the Copyright vested with the company in respect of its various trademarks and copyright registrations and are therefore knowingly infringing the same.
6. We, therefore request you to kindly take legal action against the offenders and thereby render justice.”
7. It is the specific case of the complainant that it has been dealing with the products in the brand name of ‘Green Ply’, which implies that the complainant is not a registered trade mark holder. It is not the case of the complainant that the petitioner herein had been passing off the goods in the trade mark ‘Green Ply’. On the other hand, a reading of the complaint clearly indicates that the petitioner has been running parallel business under distinct and separate brand name ‘Green Globe’. In the absence of specific allegations that petitioner herein has violated the Copy Right of the complainant or that he has been passing off the goods in the registered trade mark of the complainant, in my view, there is no basis for the complainant to set the law in motion on the purported allegations. The averments made in the complaint, even if accepted on their face value, do not constitute the ingredients of the offences under Sections 103C and 104 of the Trade Marks Act and Section 63 of the Copy Right Act. It is not the case of the complainant that he has subsisting Copy Right in and over the brand name ‘Green Ply’. In the absence of any such averments in the complaint, provisions of Copy Right are not applicable to the facts of the case.
8. Section 103 of the Trade Marks Act deals with penalty for applying false trade marks, trade descriptions, etc. and Section 104 deals with Penalty for selling goods or providing services to false trade mark or false trade description. As already stated above, it is not the case of the complainant that the petitioner herein has been applying the trade mark of the complainant to the goods or that he has been passing off the goods in the brand name of the complainant. As such, even the ingredients of Sections 103 and 104 of Trade Marks Act are not attracted to the facts of the case. As a result, registration of FIR against the petitioner is baseless and opposed to the provisions of the above Act. As a result, the said FIR and consequent investigation are liable to be quashed. Accordingly, petition is allowed. FIR in Crime No.48/2016 and consequent proceedings arising therefrom are quashed.
Sd/- JUDGE MBM