The single judge bench of Justice J.C. Dosh of the Gujarat High Court in the case of Mihir Surendrabhai Shah Vs State of Gujarat & Ors held that a police officer is required to take the opinion of the Registrar for infringement of Trade Mark prior to search and seizure.
Brief Facts:
The factual matrix of the case is that one Sanjay Kumar Verma received information that Rushab Automobiles is selling a duplicate part of Hyundai Motor Company. Upon receiving the information, the complainant approached CID. Thereafter, the shop was raided by the police, and duplicate spare parts of Hyundai Motor company were found. Furthermore, the FIR was registered under sections 101, 102, 103, 104, and 105 of the Trade Mark Act, 1999 (in short ‘the Act’).
Contentions of the Applicant:
The learned counsel appearing on behalf of the applicant submitted that the opinion of the Registrar for infringement of Trade Mark about infringement of trademark was not taken by the investigation officer which is mandatory in accordance with section 115(4) of the Act read with Rule 110 of the Trade Mark Rules. It was furthermore submitted that the FIR filed was absurd and improbable and was not in consonance with the provision of law and if the proceedings under FIR are allowed then it would be an abuse of process of law.
Contentions of the State:
The learned counsel appearing on behalf of the State submitted that the investigation of the case was completed and the criminal case is also registered against the Petitioner. It was furthermore submitted that the FIR may not be quashed at the threshold.
Observations of the court:
The Hon’ble Court observed that in accordance with section 115(4) of the Act, it was mandatory for the police official to seek the opinion of the Registrar for infringement of Trade Mark prior to search and seizure, and in the present case, no opinion of the registrar was produced in the FIR.
It was furthermore observed that the complainant blatantly failed in establishing the facts that he has the authority to file a complaint.
It was noted that only the police official not below the rank of DSP will investigate the offense. However, in the present case, the investigation was carried out with the police official of the rank PSU which once again shows that there is a breach of statutory provisions of law.
The Hon’ble Court relied upon the judgments titled Anil Kumar v/s. State of Punjab, State of Haryana v/s Bhajan Lal, and Som Mittal v/s. State of Karnataka.
Based on these considerations, the Hon’ble Court quashed and set aside the FIR registered.
The decision of the court:
With the above direction, the hon’ble court allowed the present application.
Case Title: Mihir Surendrabhai Shah Vs State of Gujarat & Ors
Coram: Hon’ble Mr. Justice J.C. Dosh
Case No.: R/Special Criminal Application No. 694 of 2014
Advocates for the Applicants: Mr Sachin D Vasavada, Mr. Samrat Mehta
Advocates for the Respondents: Mr Apurva A Dave, MS Asmita Patel
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