Before

THE LEARNED JUDICIAL MAGISTRATE FIRST CLASS, XYZ

Complaint Case No. *** / 2016

IN THE MATTER OF
{A complaint case filed under Section 190 of the Code of Criminal Procedure, 1973 read with
Section 115 Cl. (2) & (3) the Trade Marks Act, 1999.}

IN THE MATTER OF
ALEX ENTERPRISES... Complainant
v.
PETER COOK ....................Opposite Party

MEMORANDUM filed on behalf of COMPLAINANT

COUNSEL appearing on behalf of COMPLAINANTTABLE OF CONTENTS

Index of Abbreviations...............................................................................................................3
Index of Authorities...................................................................................................................5
Statutes...........................................................................................................................5
Cases..............................................................................................................................5
Lexicons.........................................................................................................................5
Statement of Jurisdiction............................................................................................................6
Statement of Facts......................................................................................................................7
Statement of Issues....................................................................................................................9
Summary of Arguments...........................................................................................................10
Arguments Advanced...............................................................................................................11
1. The complaint filed before the learned judicial magistrate first class is maintainable....11
2.1 Allegation u/s 500 of the Indian Penal Code, 1860 is completely justified...12
2.2 Allegation u/s 420 of the Indian Penal Code, 1860 is also justified..15
2.3 Allegation leveled against the opposite party u/s 102,103 and 104 of the Trade Marks Act,
1999 is completely justified..16
2.4 Allegations u/s 107 of the Trade Marks Act, 1999 is also justified...18

Prayer for Relief.......................................................................................... .......19

INDEX OF ABBREVIATIONS

Section

Sections

Paragraph

Paragraphs

AIR

All India Reporters

All ER

All England Law Report

Anr.

Another

Bom.

Bombay

CJI

Chief Justice of India

C.W.N.

Calcutta Weekly Notes

Cal

Calcutta

Del

Delhi

Edn.

Edition

I.C

Indian Cases

ILR

Indian Law Report

IPRs

Intellectual Property Rights

IndLaw

Indian Law

J.

Justice

J&K

Jammu & Kashmir

KB

Kings Bench

Ors
p.

Others
Page

P / para

Paragraph

PTC

Patent & Trade Mark Cases

Pvt

Private

RPC

Reports of Patent, Design and Trade Mark Cases

3

SC

Supreme Court

SCALE

Supreme Court Almanac

SCC

Supreme Court Cases

SCR

Supreme Court Reports

Sec.

Section

Supp.

Supplementary

TRIPS

Trade related aspects of Intellectual Property Rights

v.

Versus

Vol.

Volume

WLR

Weekly Law Reports

INDEX OF AUTHORITIES

STATUTES
The Trade Marks Act, 1999
The Code of Criminal Procedure, 1973
TABLE OF CASES

1. Chaitan Charan Das v Raghunath Singh AIR 1959 Orissa 141...14

2. K.M Cherian v Jhonson 1969 Ker. L.T 597 at p. 60014
3. M.C Varghese v T.J Phonan AIR 1970 SC 1876..13
4. R. Shankar v State AIR 1959 Ker 100...14
5. Scott v Sampson (1882) 8 Q.B.D 491...13
6. Sohan Lal v State (1962) 2 Cr. L.J 520.13
7. Tula Ram v. Kishore Singh (1977) 4 SCC 459.11
8. Viswa Mitter v. O.P Poddar (1983) 4 SCC 701 at p. 70713
LEXICONS
1. Compact Oxford Reference Dictionary, Ninth Edition
2. Blacks Law Dictionary, Ninth Edition, 2009
3. P Ramanatha Aiyar's, The Law Lexicon, Third Edition, 2012

STATEMENT OF JURISDICTION
5

THE COMPLAINANT HAS THE HONOR TO SUBMIT BEFORE THE LEARNED

JUDICIAL MAGISTRATE FIRST CLASS, XYZ, THE MEMORANDUM FOR THE
COMPLAINANT IN THE COMPLAINANT CASE NO. ***/2016 FILED UNDER
SECTION 190 OF THE CODE OF CRIMINAL PROCEDURE, 1973 READ WITH
SECTION 115(2) & (3) OF THE TRADE MARKS ACT, 1999.

THE PRESENT MEMORANDUM SETS FORTH THE

FACTS, CONTENTIONS AND ARGUMENTS IN THE
PRESENT CASE.STATEMENT OF FACTS

Alex Enterprises (hereinafter referred as the Complainant) is a sole proprietorship firm

dealing with multipurpose cooking system in the name and style of INDIA COOK, which
basically assembles the parts of the cooking system and sales them in the market and has its
operational area for entire Odisha.
The technology of assembling is developed by the firm on its own and the parts of the
cooking system is generally supplied by another Company named ALL INDIA COOKING
LTD. (AICL) having registered office at Mumbai.
The said AICL firm also supplies another firm in Odisha namely PETER COOK (hereinafter
referred as the opposite party) which also deals in the same multipurpose cooking system in
the name and style of INDIA COOK.
Subsequently, all the three parties ie. the Complainant, the Opposite Party and the AICL
applied for registration of Trade Mark of the same and exact design in the name and style of
INDIA COOK.
Resultantly, the application of the AICL has been abandoned and the application of Peter
Cook has not yet been accepted whereas the application of Alex Cook has been accepted and
pending before the Registering Authority, but no final registration certificate is yet issued.
During pendency of Trade Mark applications, there was a dispute between AICL and the
Opposite Party regarding manufacturing the product ie. INDIA COOK, consequently the
business relationship between them came to an end. Also the said dispute is pending before
the sole arbitrator at Mumbai since 12.12.2015.
The Opposite Party, simultaneously on two subsequent dates ie on 19.01.2016 and on
09.02.2016 published an advertisement in Local daily THE SAMBAD wherein it used the
logo and design of INDIA COOK and made a following note in the advertisement :That the license of Alex Enterprises has been cancelled By the ALL INDIA
COOKING LTD. (AICL). The only authorized dealer of the product is Peter Cook. The
product Sold by the Alex Enterprises are duplicate hence the same are not reliable.
Consumers be careful.

Thereafter, Alex Enterprises filed a complaint case

against the Opposite Party and prayed for punishment
U/s.420 and 500 of IPC and also punishment U/s 102,
103, 104 107 of The Trade Mark Act, after which the
Learned Magistrate First Class took cognizance of the
matter under the above charges and issued notices to the
accused person to appear. After appearance the accused
filed an application regarding the maintainability of the
complaint case and also filed objection with regard to the
defamation taking the plea that the present case is
coming within the ambit of the exceptions to defamation.
The objections of the accused are to be heard before
proceeding to the trial.STATEMENT OF ISSUES
The following questions are presented before the Honble Court in the instant matter:

ISSUE I
WHETHER

THE

COMPLAINT FILED

BEFORE

MAGISTRATE FIRST CLASS MAINTAINABLE?

ISSUE II

THE

LEARNED

JUDICIAL

WHETHER THE ALLEGATIONS LEVELLED AGAINST

THE OPPOSITE PARTY U/S 420 AND 500 OF THE
INDIAN PENAL CODE AND U/S 102, 103, 104, 107 OF
THE TRADE MARKS ACT JUSTIFIABLE IN THE EYES
OF LAW?SUMMARY OF ARGUMENTS

1. THE CASE FILED BEFORE THE LEARNED JUDICIAL MAGISTRATE FIRST

CLASS IS MAINTAINABLE.
It is humbly submitted that the case filed before the Learned Judicial Magistrate First Class
is maintainable u/s. 190 of the Code of Criminal Procedure, 1973 along with Section 115
(2)&(3) of the Trade Marks Act, 1999 as the said authority has the power of taking
cognizance and has acted within the jurisdiction.

2. THE ALLEGATIONS LEVELLED AGAINST THE OPPOSITE PARTY U/S 420 AND
500 OF THE INDIAN PENAL CODE, 1860 AND U/S 102, 103, 104, 107 OF THE
TRADE MARKS ACT, 1999 IS JUSTIFIABLE IN THE EYES OF LAW.

10

It is submitted that the allegations leveled against the

opposite party u/s 420, 500 of the Indian penal Code, 1860
and u/s 102, 103, 104 and 107 of the Trade Marks Act, 1999
is justifiable in the eyes of law as the essential requirement
of the above mentioned section is completely met
with.ARGUMENTS ADVANCED
1. WHETHER THE COMPLAINT FILED BEFORE THE LEARNED JUDICIAL
MAGISTRATE FIRST CLASS MAINTAINABLE?
It is most humbly submitted before the Learned Court that the instant complaint is
maintainable u/s. 190 of the Code of Criminal Procedure, 1973 along with Section 115
(2)&(3) of the Trade Marks Act, 1999.
It is further submitted before the Learned Court that the Clause 1 of Section 190 of the Code
of Criminal Procedure, 1973 provides as herein after citedSubject to the provisions of this Chapter, any Magistrate of the first class, and any
Magistrate of the second class specially empowered in this behalf under Sub-Section (2), may
take cognizance of any offence1. upon receiving a complaint of facts which constitute such offence;
It is submitted that, in the instant matter, the opposite party is accused with charges under
u/s.420 and 500 of the Indian Penal Code, 1860, thereby, enabling the Judicial Magistrate
First Class to take cognizance upon receiving a complaint of facts which constitute such
offence.
Furthermore, it is humbly submitted before the Learned Court that in Tula Ram v. Kishore
Singh,1 it was held that taking cognizance does not involve any formal action, or indeed
action of any kind, but occurs as soon as a magistrate, as such applies his mind to the
suspected commission of an offence for the purpose of proceeding to take subsequent steps
towards injury or trial.
Therefore, it is humbly submitted that since in the instant matter the Magistrate received a
complaint from the complainant and therefore on applying his mind to the suspected
commission of an offence for the purpose of proceeding to take subsequent steps towards
injury or trial and thus he is empowered to take cognizance under clause (1) of Section 190 of
the Code of Criminal Procedure, 1973.
1 (1977) 4 SCC 459
11

Moreover, it is also humbly submitted that while combined reading of Clauses (2) & (3) of
Section 115 of the Trade Marks, 1999 provides as herein after citedCognizance of certain offences and the powers of police officer for search and seizure:
(2) No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the first
class shall try an offence under this Act.
(3) The offences under section 103 or section 104 or section 105 shall be cognizable.
It is thus most humbly submitted that on proper perusal of the above mentioned provision it
is clear that the Judicial Magistrate First Class shall try an offence under this Act, and also
that the offences mentioned under Section 103 to 105 shall be cognizable.
Moreover it is humbly submitted that Section 115 of the Trade Marks Act, 1999 does not
prescribe any particular eligibility criterion or qualification for filing a complaint for
contravention of Sections 103 to 105 of the Act. In the absence of any specific qualification,
if a person complaining has a subsisting interest in the protection of the trademark, his
complaint cannot be rejected on the ground that he had no cause of action of sufficient
subsisting interest to file the complaint.2
Therefore it is most humbly submitted that from the combined reading of the provisions the
Learned Court has the authority of taking the cognizance and is therefore endowed with the
same authority and has acted within its jurisdiction and therefore the complaint case filed is
maintainable.
2. WHETHER THE ALLEGATIONS LEVELLED AGAINST THE OPPOSITE
PARTY U/S 420 AND 500 OF THE INDIAN PENAL CODE AND U/S 102, 103, 104, 107
OF THE TRADE MARKS ACT JUSTIFIABLE IN THE EYES OF LAW?
It is most humbly submitted that the allegations levelled u/s 420 and 500 of the Indian Penal
Code, 1860 and u/s 102, 103, 104 and107 of the Trade Marks Act, 1999 is justifiable in the
eyes of laws.
2.1 Allegation under Section 500 of the Indian Penal Code, 1860 is completely justified:
It is most humbly submitted before the Learned Judicial Magistrate First Class that the
allegation leveled under Section 500 of the Indian Penal Code, 1860 is completely justified.
2 Viswa Mitter v. O.P Poddar (1983) 4 SCC 701 at p. 707
12

It is submitted before the Learned Court that the Section 499 of the Indian Penal Code, 1860
provides as herein after citedWhoever, by words either spoken or intended to be read, or by signs or by visible
representations, makes or publishes any imputation concerning any person intending to
harm, or knowing or having reason to believe that such imputation will harm, the reputation
of such person, is said, except in the cases hereinafter expected, to defame that person.
It is most humbly submitted that in defining the offence under this section the main clause
contain three important words, the person, his reputation and the harm with the necessary
mens rea, which in the defamatory clause will be presumed if the imputation is defamatory
per se. The essence of offence of defamation is the intention to harm the reputation and that
necessarily requires publicity to be given to the imputation. 3 Intention on the part of the
accused to harm the reputation or the knowledge or reasonable belief that an imputation will
harm the reputation of the person concerned is an essential ingredient of the offence under
Section 499.
The classical definition of the term defamation is given by Mr. Justice Cave in the case of
Scott v Sampson4, as a false statement about a man to his discredit. Defamation is an
imputation made against another person, which is and believed by the maker to be injurious
to his reputation. Also, the essential ingredients for an offence falling under Section 499 of
the Indian Penal Code, 1860 are (i) the making or publishing of an imputation concerning any
person; (ii) such imputation must have been made (a) by words either spoken or intended to
be read (b) by signs (c) by visible representation; and (iii) such imputation must have been
made with the intention of harming or knowing or having reason to believe that it will harm
the reputation of the person concerning whom it is made.5
Publishing of an imputation concerning a person:
It is humbly submitted that it is manifest that only such imputations as are malicious and
reckless and not for the public good, tranquility, peace or public security or as are not made in
good faith have been brought within defamation which is but the abuse of freedom of speech
and expression punishable under Section 500.
Evidently, on proper perusal of facts on record it is summed up that the imputation that have
3 Sohan Lal v State (1962) 2 Cr. L.J 520
4 (1882) 8 Q.B.D 491
5 M.C Varghese v T.J Phonan AIR 1970 SC 1876
13

been made on two consecutive dates and that too in well circulated local daily is clearly a
malicious and reckless an act and is not meant for any public good, peace or security. And
thus this act of opposite party is liable to the punishment under Section 500 of the Indian
Penal Code, 1860.
Intention of causing harm:
It is humbly submitted that the essence of the offence of defamation is that the imputation
must have been made either with the intention of causing harm or knowing or having reason
to believe that such imputation would cause harm to a person.6
It is submitted that in the case of R. Shankar v State7, an article was first published in one
newspaper and then reproduced in another. It was held that it is needless to say that the
burden lies on an accused person to make but that his case comes within any of the
exceptions. It was further held that the article was per se defamatory and that none of the
exception to Section 499 applied.
It is most humbly submitted that from the complete perusal of the facts on record it is clear
that there was no such averment with respect to cancellation of licence of the Complainant by
the AICL.
Moreover the opposite party staed that the complainant are selling the duplicate products and
hence the same are not reliable. The said statement is per se defamatory as it lowers the
reputation of the complainant in the opinion of others. Also if the language spoken or
intended to be read is highly intemperate and disproportionate to the facts then malice on the
part of the accused can be easily inferred.8
The present case of defamation does not fall within the ambit of exceptions:
It is most humbly submitted that the present case does not fall within the ambit of exception
to defamation. These exceptions are classes under two heads: those in which truth spoken for
public good is no offence and in which case the question of bona fides is immaterial, which
means that in first case the words must be true and uttered for the public good whatever may
be the speakers intention or in the other case publication must have been made bona fide,
6 Chaitan Charan Das v Raghunath Singh AIR 1959 Orissa 141
7 AIR 1959 Ker 100
8 K.M Cherian v Jhonson 1969 Ker. L.T 597 at p. 600
14

though it may not be true.

Non-applicability of doctrine of fair comment:
It is most humbly submitted that the doctrine of fair comment is based on the hypothesis that
the publication is question is one in which, broadly speaking, is true in facts and is not made
to satisfy a personal vendetta and further that the facts stated therein are such as would go to
serve the public interest.
As per Halsburys Law of England, 9 a material mis-statement of any of the facts on which
comment is made negatives the possibility of the comment being fair.
Thus it is submitted that, from bare reading of facts on record it is clear that the publication
was neither true nor has been published in good faith and thus it would not catch the attention
of the exceptions to defamation and would also not attract the defense of doctrine of fair
comment.
2.2 Allegation u/s 420 of the Indian Penal Code, 1860 is also justified:
It is most humbly submitted that for establishing an offence under this section that there
should be direct connection between the false representation and delivery of property for the
doing of something by the person deceived. It is also necessary that the act or omission
complained of should cause or is likely to cause damage or harm to the person in body, mind,
reputation or property.
Dishonest inducement:
It is most humbly submitted that dishonest inducement under this section would imply to
mean the knowledge of the unlawfulness of the method employed; an intention to employ it
and to cause wrongful distribution of property thereby; and some degree of personation
effected for that purpose.
Property:
It is most humbly submitted that the term property as used in this connection is wide enough
to include anything capable of ownership. Therefore, Intellectual property ie, the Mark and
style INDIA COOK can also be treated as a property under this section.

9 3rd Edition Volume 24, pp. 70-74

15

Furthermore, it is submitted that since there is a dishonest inducement and that inducement is
with respect to the delivery of property or some valuable security, whether it be any kind of
property is sufficient enough to attract this provision.
It is submitted that post-publishing the advertisement in the newspaper it is clear that the
Opposite Party by their act of using the symbol and design of INDIA COOK has
dishonestly tried to induce the complainant to deliver the mark of INDIA COOK, being a
property, and thus can be booked under Section 420 of the Indian Penal Code, 1860.
2.3 Allegation leveled against the opposite party u/s 102,103 and 104 of the Trade Marks Act,
1999 is completely justified:
It is most humbly submitted that the allegations leveled by the Complainant against the
Opposite Party u/s 102 and 103 of the Trade Marks Act, 1999 is completely justified.
It is further submitted before the Learned Court that Section 102 of the Trade Marks
Act, 1999 provides as herein after citedFalsifying and falsely applying trade marks.
(1) A person shall be deemed to falsify a trade mark who, either,
(a) without the assent of the proprietor of the trade mark makes that trade mark or a
deceptively similar mark; or
(b) falsifies any genuine trade mark, whether by alteration, addition, effacement or
otherwise.
(2) A person shall be deemed to falsely apply to goods or services a trade mark who, without
the assent of the proprietor of the trade mark,
(a) applies such trade mark or a deceptively similar mark to goods or services or any
package containing goods;
(b) uses any package bearing a mark which is identical with or deceptively similar to the
trade mark of such proprietor, for the purpose of packing, filling or wrapping therein any
goods other than the genuine goods of the proprietor of the trade mark.
(3) Any trade mark 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 trade mark.
(4) In any prosecution for falsifying a trade mark or falsely applying a trade mark to goods
or services, the burden of proving the assent of the proprietor shall lie on the accused.
16

It is therefore most humbly submitted that according to Section 102 of the Act a false trade
mark means a trade mark which is falsified or falsely applied to goods or services. Also, it is
submitted that a person is deemed to falsify a trade mark who either (i) without the assent
of the proprietor of trade mark makes that trade mark or a deceptively similar work; or (ii)
falsifies any genuine trademark whether by alteration, addition, effacement or otherwise.
Furthermore, by reading Clause (a) & (b) Section 103 of the Trade Marks Act, 1999 which is
cited hereinafter as:
Penalty for applying false trade marks, trade descriptions, etc.Any person who
(a) falsifies any trade mark; or
(b) falsely applies to goods or services any trade mark;
Also, clause (g) of the said section reads as follows:
(g) causes any of the things above-mentioned in this section to be done, shall, unless he
proves that he acted, without intent to defraud, be punishable with imprisonment for a term
which shall not be less than six months but which may extend to three years and with fine
which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:
Provided that the court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment for a term of less than six months or a fine of
less than fifty thousand rupees.
Therefore, it is most humbly submitted that on combined reading of both the sections it is
arrived at the conclusion that the complainant being the sole proprietorship firm has not given
the assent of using the trademark or a deceptively similar work. Moreover any person who
falsifies any such trademark be liable with imprisonment for a term which shall not be less
than six months but which may extend to three years and with fine which shall not be less
than fifty thousand rupees but which may extend to two lakh rupees.
Thus it is most humbly submitted that the allegations leveled against the infringer is
completely justified in the eyes of law.
Furthermore, it is most humbly submitted that the allegation leveled u/ s 104 of the said Act is
also justified. Elaborating the said section it is stated that it prescribes penalty for selling
goods or providing services to which false trade mark or false trade description is applied. As
already proved that the trade mark is falsely applied by the infringer and such an infringer
17

sells the multi purpose cooking system to which false trade mark is applied, and thus is liable
to penalty u/s 10y of the Trade Marks Act, 1999.
2.4 Allegations u/s 107 of the Trade Marks Act, 1999 is also justified:
It is most humbly submitted that according to section 107(1)(a), no person is to make any
representation:
(a) with respect to an unregistered trade mark to the effect that it is a registered trade mark;
Therefore, it is humbly submitted that from the case in hand it is clear that the infringer while
publishing the article in the newspaper has used the name & style of INDIA COOK,
moreover they have also stated that the only authorized dealer of the product is Peter
Cook, which symbolizes that they have made a representation with respect to an
unregistered trade mark to the effect that it is registered trademark. Thus, the said firm or the
infringer is liable to imprisonment for a term of three years or with or both.

PRAYER
Wherefore, in the lights of facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed and implored before the Honble Court, that it may graciously
be pleased:
18

1. To convict the opposite party under the said sections, and

2. Pass any other order it deems fit in the interests of justice, equity and good conscience.

All of which is most humbly and respectfully submitted.

Place: XYZ, Orissa

Date: __ / 11 / 2016

s/d Moot Counsels For

Complainants

19