The Role of Criminal Prosecution in Upholding Geographical Indications Integrity

When someone slaps a fake “Darjeeling” label on tea grown hundreds of kilometres away, or sells counterfeit Kolhapuri chappals made in an unrelated factory, the harm goes beyond consumer deception – it strikes at the livelihood of an entire community tied to that product by geography, tradition, and craft. India’s Geographical Indications of Goods (Registration and Protection) Act, 1999 doesn’t just address such misuse through civil remedies. It creates a robust set of criminal offences, backed by prosecution procedures and stringent penalties, precisely to signal that GI violations are serious crimes – not minor commercial disputes.

Why criminal law enters the GI picture 🔗

Civil remedies like injunctions and damages are important, but they largely depend on the affected party going to court and proving loss. Criminal law adds a different dimension: the state steps in as an interested party, the threat of imprisonment becomes real, and the deterrent effect is far stronger. The GI Act recognises this explicitly. Because geographical indications are treated as public property – belonging to a community rather than a single commercial entity – the enforcement mechanisms are correspondingly more rigorous than they might be for ordinary private IP rights.

Criminal offences under the GI Act 🔗

The Act identifies several distinct criminal offences spanning Sections 38 through 54. Each addresses a specific category of wrongful conduct, and together they cover the full spectrum of GI misuse.

Falsifying and falsely applying a geographical indication (Sections 38 & 39) 🔗

Section 38 targets the act of falsifying a geographical indication – which includes making, altering, or using any GI or a deceptively similar mark without authorisation. Section 39 addresses falsely applying a registered GI to goods, for instance by stamping, embossing, or otherwise attaching a protected GI to products that don’t qualify for it. Both sections form the core of criminal liability under the Act.

Selling goods with a false GI (Section 40) 🔗

This provision extends liability beyond manufacturers to traders and retailers. Under Section 40, anyone who sells, exposes for sale, or possesses goods for sale bearing a false geographical indication – even if they were not the one who applied the false mark – commits an offence, provided they knew or had reason to believe the GI was not genuine. This is an important provision because the counterfeit supply chain often involves multiple actors.

Falsely representing a GI as registered (Section 42) 🔗

Using terms, symbols, or descriptions that imply official registration for an unregistered geographical indication is itself a separate offence. This prevents businesses from falsely borrowing the prestige associated with registered GI status without having earned it through the proper registration process.

Other specific offences 🔗

The Act also criminalises falsification of entries in the GI Register (Section 44), improperly describing a place of business as connected with the GI Registry (Section 43), and abetment of these offences even when committed outside India (Section 54). This last provision is especially relevant in the context of global trade, where counterfeit GI products may be manufactured abroad for export into Indian or international markets.

Penalties: imprisonment and fines 🔗

The GI Act prescribes penalties that are designed to be genuinely punitive, not just token deterrents.

First-time offences 🔗

For a first conviction under the primary offence provisions, an offender faces imprisonment of not less than six months, extendable up to three years, along with a fine of not less than ₹50,000, extendable up to ₹2,00,000. Courts do have limited discretion to impose lesser sentences in special circumstances, but any such reduction must be recorded with written reasons in the judgment – a safeguard against leniency becoming the default.

Repeat offenders 🔗

The Act takes a sharply stricter view of second and subsequent convictions. A repeat offender faces imprisonment of not less than one year, extendable up to three years, and a fine ranging from ₹1,00,000 to ₹2,00,000. This escalating penalty structure sends a clear message: a first conviction is not a free pass to continue infringing.

Forfeiture of goods 🔗

Beyond imprisonment and fines, courts are empowered under Section 46 of the GI Act to order the forfeiture of all infringing goods, materials, and implements used in the commission of the offence. This ensures that counterfeit products are taken off the market entirely and cannot re-enter circulation. Forfeiture hits infringers where it hurts most – their inventory and the tools of their trade.

Procedural aspects of criminal prosecution 🔗

Understanding how a criminal case under the GI Act actually proceeds is essential for rights holders, enforcement agencies, and law students alike.

Cognizable offences and police powers 🔗

Most offences under the GI Act are cognizable, meaning police officers can arrest alleged offenders without obtaining a warrant. Section 50 specifically empowers police officers of the rank of Inspector and above to search premises, seize infringing goods, and arrest offenders. This classification reflects the seriousness of GI violations and facilitates faster enforcement action compared to non-cognizable offences that require prior court authorisation.

Filing a complaint 🔗

In practice, most prosecutions begin with a formal complaint filed by the registered proprietor or an authorised user of the geographical indication. While police can act on their own initiative, the complaint mechanism is more common. A well-drafted complaint should provide documentary evidence of the registered GI, details of the unauthorised use, and specific information about the harm caused – commercial loss, consumer confusion, or reputational damage to the GI’s associated community.

Court jurisdiction 🔗

The GI Act specifies that offences cannot be tried by a court inferior to a Metropolitan Magistrate or a Magistrate of the First Class. This ensures that prosecutions are handled by courts with adequate experience and authority, lending credibility and seriousness to the proceedings.

Limitation period 🔗

Prosecution under the Act is time-bound. As per Section 52, a complaint must be filed within three years from the date of the commission of the offence, or two years from the date the prosecutor discovered the offence, whichever expires first. This limitation provision encourages prompt action by rights holders and prevents stale prosecutions from being launched years after the fact.

Corporate liability 🔗

When a company commits an offence under the GI Act, Section 49 makes both the company itself and every officer who was in charge of and responsible for the conduct of the company’s business at the time of the offence liable to prosecution and punishment. The only exception is where an individual officer proves that the offence was committed without their knowledge and that they exercised due diligence to prevent it.

Defences available to the accused 🔗

The Act is stringent, but it does recognise certain defences that an accused person can raise.

Invalidity of the GI registration: The accused can argue that the geographical indication in question was never validly registered. If the court finds this plea prima facie tenable, it adjourn proceedings for three months to allow the accused to initiate rectification proceedings before the Appellate Board, and the prosecution is stayed until that application is disposed of.

Consent of the proprietor: If the accused can prove that the use of the GI was made with the registered proprietor’s consent, no offence is made out – though the burden of establishing this consent rests with the accused.

Reasonable care and absence of knowledge: An accused who proves that they took all reasonable precautions, had no reason to suspect the GI was not genuine, and acted in good faith may be able to avoid liability. This defence is particularly relevant for retailers and distributors further down the supply chain who may not have been directly involved in applying the false GI.

Disclosure of information: Where an accused cooperates with the prosecution by disclosing information about the source from whom they obtained infringing goods, this can also be raised as a mitigating factor in proceedings.

The deterrent function of criminal prosecution 🔗

The criminal provisions of the GI Act serve a purpose that goes beyond punishing individual offenders. They create a systemic deterrent. When a manufacturer or trader knows that selling counterfeit GI products can lead to arrest without a warrant, seizure of all inventory, and a prison term of up to three years, the risk-reward calculation for GI infringement changes significantly. This is especially important for protecting products like Darjeeling tea, Kanchipuram silk, or Kolhapuri chappals – products where the registered producers are often small-scale artisans or farming communities who lack the resources to fight prolonged civil litigation.

Criminal prosecution also benefits from the state machinery – police, prosecutors, courts – rather than placing the entire burden on the registered proprietor or authorised user. This is critical because GI-holding communities are often rural, dispersed, and economically vulnerable. Complementing civil remedies with criminal enforcement levels the playing field considerably.

Interplay with other laws 🔗

Criminal prosecution under the GI Act does not operate in isolation. Where GI infringement also involves elements of fraud, forgery, or cheating, provisions of the Bharatiya Nyaya Sanhita (BNS), 2023 (which replaced the Indian Penal Code) may apply concurrently. Fraudulent GI misrepresentation that causes financial loss could attract liability for cheating and forgery under the BNS, adding further criminal exposure to an infringer. Section 66 of the Trade Marks Act, 1999 has also been extended to apply to geographical indications, providing an additional layer of penal protection.

What do you think? Given that most GI-holding communities in India are small producers with limited legal resources, should the state take a more proactive role in initiating criminal prosecutions for GI infringement, rather than waiting for a formal complaint from rights holders? And do you think the current penalty structure – imprisonment of up to three years and fines up to ₹2 lakh – is strong enough to deter large commercial entities from exploiting protected geographical indications for profit?

References

1. https://www.indiacode.nic.in/bitstream/123456789/1981/5/A1999-48.pdf
2. https://www.mondaq.com/india/intellectual-property/36358/offences-relating-to-geographical-indications-in-india
3. https://lawx.in/acts/chapter/570
4. https://blog.ipleaders.in/offences-penalties-geographical-indication-act/
5. https://stratjuris.com/from-heritage-to-rights-decoding-indias-gi-tagging-framework/
6. https://finlawassociates.com/blog/understanding-geographical-indication-gi-infringement-in-india
7. https://thelegalschool.in/blog/infringement-of-geographical-indication