Section 38 of The Geographical Indications of Goods (Registration and Protection) Act, 1999
- (1)A person shall be deemed to falsify a geographical indication who, either,--
- (a)without the assent of the authorised user of the geographical indication makes that geographical indication or deceptively similar geographical indication; or
- (b)falsifies any genuine geographical indication, whether by alteration, addition, effacement or otherwise.
- (2)A person shall be deemed to falsely apply to goods a geographical indication who, without the assent of the authorised user of the geographical indication,--
- (a)applies such geographical indication or a deceptively similar geographical indication to goods or any package containing goods;
- (b)uses any package bearing a geographical indication which is identical with or deceptively similar to the geographical indication of such authorised user, for the purpose of packing, filling or wrapping therein any goods other than the genuine goods of the authorised user of the geographical indication.
- (3)Any geographical indication falsified as mentioned in sub-section (1) or falsely applied as mentioned in sub-section (2), is in this Act referred to as a false geographical indication.
- (4)In any prosecution for falsifying a geographical indication or falsely applying a geographical indication to goods, the burden of proving the assent of proprietor shall lie on the accused.
Summary
- This provision defines what it means to fake a geographical indication.
- You falsify an indication if you make it, or something very similar to it, without the owner's permission.
- It is also falsification to change or erase a real indication to make it misleading.
- Falsely applying an indication means putting it on a package or product without being allowed to.
- Using a genuine looking box to pack fake goods is considered falsely applying the indication.
- If you are caught, the law says it is your job to prove that you had the owner's permission.
Practical examples
FAQ
1. What counts as falsifying an indication under Section 38 of the Geographical Indications Act?
Under Section 38 of the Geographical Indications Act, you falsify an indication if you make it or a similar one without the user's permission, or if you alter a genuine one.
2. Who has to prove permission was given under Section 38 of The Geographical Indications of Goods (Registration and Protection) Act, 1999?
Section 38 states that the burden of proving that the owner gave their assent, or permission, lies entirely on the person who is being accused.
3. Is it illegal to use fake packages under Section 38 of the Geographical Indications Act?
Yes, Section 38 says you are falsely applying an indication if you use a package with a protected mark to wrap goods that are not the genuine product.
4. What does Section 38 of The Geographical Indications of Goods (Registration and Protection) Act, 1999 call these illegal marks?
According to Section 38, any indication that has been falsified or falsely applied as described in the section is officially referred to as a false geographical indication.
Test yourself
Q1.Under Section 38 of The Geographical Indications of Goods (Registration and Protection) Act, 1999, which of the following is considered falsifying an indication?
Q2.According to Section 38 of the Geographical Indications Act, what is required for an action to NOT be considered falsifying?
Q3.Under Section 38 of The Geographical Indications of Goods (Registration and Protection) Act, 1999, who carries the burden of proof regarding permission?
Q4.If a person uses a package bearing a registered indication for non-genuine goods, what is this called under Section 38 of the Geographical Indications Act?