It has been said we are having ancient law with medieval law enforcement agencies to tackle modern offences. Can we succeed in handling modern cybercrimes, that is the question? This observation also appears to be true if look at our law of Land in India.
We are having the Indian Penal Code 1860, Indian Evidence Act Act 1972, Civil Procedure Code 1908 to tackle modern days offences. Though the Indian Government has enacted the Trademarks Act 1999, Copyright Act 1957, Design Act 2000, Patent Act 1970 for handling cyber crimes, technology-based crimes, still there are lots of amendments required to be done. This article deals with a few of the suggestions, which are required to be carried out to deal with problems faced in Modern Days Counterfeiting.
The right holder has to face problems while dealing with counterfeit products. There is always a dilemma in ascertaining the counterfeiting, as the term counterfeiting has not been defined under the trademark marks act. Because of this lacunae, the counterfeiters can take advantage of different interpretations given differently by different courts to the term counterfeiting.
Though there has been an amendment in Notification No.28-2017 Dated 22.02.2017 Central Tax (Rate) dated 28.06.2017, issued by the Government of India, Ministry of Finance, (Department of Revenue), whereby a party can seek an exemption in GST, after disclaiming right in Brand, there has not been any corresponding amendment in Trademark law. Because of this, a party can get exemption from the government in taxes, still can enforce their right in the trademarks act. This anomaly has to be eradicated.
There has been amended concerning the declaration of a well-known trademark, but what would be having advantages of that, it is missing in Trademark law. Section 135 of the Trademarks Act provides the registered proprietor, the right of remedy, either damages or rendition of account. While in Copyright Act, both remedies can be availed by the Copyright holder. A similar right should be granted in the trademark act also.
Though goods have been defined in the trademarks act, however, terms similar goods, allied and cognate goods have not been defined. Lots of confusion are always there has been inconsistent judgements by various courts while interpreting the term same, similar, allied or cognate goods. To avoid confusion, the term same goods, similar goods, allied and cognate goods should be defined in the trademarks act.
World IP Law is changing and is getting broader and broader to encompass smell, sound etc. as a trademark. To keep at pace with changing IP World scenario, the trademark law should be amended to incorporate sound trademark, smell trademark, ambience trademark also.
There should be provisions for carrying out amendments in registered trademarks. In many cases, where parties settle the matter and agree to change their registered trademark, however in absence of any such provision for amendment of a registered trademark, lots of problems are faced by the registered proprietor in resolving the inter se disputes on a registered trademark.
Term goods will and reputation is again a problem that has not been defined in the trademarks act. This is the area, where a definite explanation is required to be given. Trademark Act should be amended to incorporate unregistered users including authorized and permitted users also who can also initiate civil suit proceedings. Penalty for repeated offences committed under trademark act should be enhanced up to 4 years to give teeth to trademarks act 1999. This step would create some deterring effect on the counterfeiters.
There might be possibilities of various such suggestions to equip our law to keep at pace with modern offences like cyber crimes, counterfeiting. However, in my opinion, the aforementioned amendment are necessary and the call of time. The government of India should keep an eye to these suggestions.
Ajay Amitabh Suman