Defenses Available To The Accused Who Infringes The Mark

The accused may plead for the following defenses:

1. Denial of allegation made by prosecution;
2. Acted without intent to defraud;
3. Use of the mark permitted under the Trade marks Act or under any other law in force;
4. Acted under mistake of fact or that he had no knowledge that the trade mark belonged to any particular person, provided he had taken all reasonable precautions;
5. Acted innocently.

The above defenses can be proved with the help of a case law. In Matilal Premsuk V Kanhailal Dass , the accused sold imported woolen shawls bearing an infringing mark bought at an auction. It was held that he had acted without intent to defraud.

Jurisdiction of court to try trademark offences:
No court inferior to that of a Sessions Judge, Presidency Magistrate or Magistrate of first class has power to try an offence relating to trade mark or false trade description. The complaint should be filed in the court within whose territorial jurisdiction the offence is committed. A person whose trademark has been copied can file a suit for infringement or passing off in a Civil Court or file a complaint before a Criminal Court.

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