India’s intellectual property statutes divide cleanly on this question. Trademark counterfeiting and copyright infringement are crimes — cognizable ones, which police can investigate and act on without a court’s permission. Patent and design infringement are not crimes at all, and never have been. For the owner of a trademark or copyright facing organised copying, the criminal route is often the more effective one; for a patentee or design proprietor, it does not exist.
Quick reference
| Right | Offence | Penalty | Police powers |
|---|---|---|---|
| Trademark | Applying a false trademark or trade description; selling goods or services bearing one | Six months to three years, and ₹50,000 to ₹2 lakh; more on a second conviction | Search and seizure without warrant by an officer of Deputy Superintendent rank or above, after obtaining the Registrar’s opinion |
| Copyright | Knowing infringement or abetment; knowing use of pirated software; circumventing protection | Six months to three years, and ₹50,000 to ₹2 lakh; less where not for gain | Seizure without warrant by a sub-inspector or above; cognizable and non-bailable |
| Patent | None | — | — |
| Design | None | — | — |
| Geographical indication | Falsely applying a GI | Six months to three years, and ₹50,000 to ₹2 lakh | As for trademarks |
Trademarks
It is an offence to falsify a trademark or falsely apply one to goods or services, to make or possess the means of doing so, to apply a false trade description, and to sell or offer goods or services to which a false mark or description has been applied. The penalties are imprisonment of six months to three years and a fine of ₹50,000 to ₹2 lakh, with the court able to go lower for special reasons recorded; a second conviction carries one to three years and ₹1 lakh to ₹2 lakh. The 2023 decriminalisation law left these offences alone; it converted lesser trademark offences — falsely claiming a mark is registered, for instance — into monetary penalties and removed two obsolete ones.
The seller’s defence is that it took all reasonable precautions, had no reason to suspect the mark was false, gave the prosecution the information it had about its source, and acted innocently. The provision is aimed at counterfeiting, and it is against counterfeiters that it is used.
Police powers and the Registrar’s opinion. The offences are cognizable. A police officer of the rank of Deputy Superintendent or above may search premises and seize goods, dies, blocks, machines and other materials without a warrant — but must first obtain the Registrar of Trade Marks’ opinion on the facts of the alleged offence and abide by it. The opinion is obtained on application to the Trade Marks Office with the registration details and the evidence, and is the step that takes time. Some High Courts have read the requirement strictly; the Karnataka High Court has held that it is not a precondition in every case. Practitioners obtain it wherever the timing allows.
Copyright
Knowingly infringing or abetting infringement of copyright is punishable with six months to three years’ imprisonment and a fine of ₹50,000 to ₹2 lakh; where the infringement was not for gain in the course of trade, the court may impose less. A second conviction carries one to three years and ₹1 lakh to ₹2 lakh. Knowingly using an infringing copy of software on a computer is a separate offence, and circumventing technological protection with intent to infringe is another.
The Supreme Court held in 2022 that the infringement offence is cognizable and non-bailable. A police officer of the rank of sub-inspector or above may seize infringing copies and the plates used to make them without a warrant, wherever found, and must produce them before a magistrate. No Registrar’s opinion is needed. The 2023 decriminalisation law removed only the separate offence of making false statements to the Copyright Office.
Patents and designs
There is no criminal offence of patent infringement or design piracy. The Patents Act’s offences concern contraventions of secrecy directions, filing abroad without permission, falsely claiming that something is patented, and unauthorised practice — and the 2023 law converted most of those into monetary penalties. The Designs Act has none. A patentee or design proprietor whose product is copied has civil remedies only, and a police complaint alleging patent or design infringement will not be registered. Where the copy also carries a counterfeit trademark or a pirated artwork, the trademark and copyright offences are the route in.
Starting a case
There are two ways. An FIR at the police station with jurisdiction over the place where the goods are made or sold, with the registration certificate, the evidence of the offence — trap purchases, investigator’s report, samples — and, for trademarks, the Registrar’s opinion or a request that the police obtain it. Or a complaint to the magistrate, who can direct the police to investigate or take cognizance directly; this is the route where the police are slow or reluctant.
In practice the complainant does the investigation: identifies the premises, buys the goods, documents the chain, and presents the police with a case that needs only executing. A raid is arranged, the goods are seized and inventoried, the accused are arrested or notified, and the case proceeds to charge sheet and trial. The trial is slow. The raid is the point.
What criminal action achieves
Speed and surprise — a raid can happen within days of the complaint, without notice, and without the caveat problem that follows a civil letter. Physical removal of stock, packaging, dies and machines. Deterrence — the prospect of arrest changes behaviour in a way a civil decree against a shell entity does not. Reach — police can act in a market or a factory where a civil commissioner would need an escort. And leverage — many criminal cases end in a compromise in which the accused undertakes to stop, pays costs and hands over stock, which is what the complainant wanted.
The costs: the complainant loses control once the state takes over; the accused can seek bail, quashing, or an order that the goods be released; a case that fails leaves the complainant exposed to a claim; and convictions, when they come, come years later with sentences at the lower end.
Civil and criminal together
Serious counterfeiting and piracy matters run both. The civil suit produces an injunction, a local commissioner’s seizure and, eventually, damages; the criminal complaint produces the raid, the arrests and the deterrent. Customs recordal stops the imports. The three are coordinated so that each does what the others cannot, and so that nothing said in one undermines the other.
Frequently asked questions
Is trademark infringement a criminal offence in India? Falsifying or falsely applying a trademark, and selling goods or services bearing a false mark, are offences punishable with six months to three years’ imprisonment and a fine of ₹50,000 to ₹2 lakh. They are cognizable, and police can search and seize without a warrant after obtaining the Registrar’s opinion.
Is copyright infringement a criminal offence in India? Yes. Knowing infringement carries six months to three years’ imprisonment and a fine of ₹50,000 to ₹2 lakh. The offence is cognizable and non-bailable, and police can seize infringing copies without a warrant.
Can I file a police complaint for patent or design infringement? No. Patent infringement and design piracy are not criminal offences in India. The remedies are civil only. Where the copy also bears a counterfeit trademark or pirated artwork, those offences apply.
What is the Registrar’s opinion in a trademark raid? Before searching and seizing for a trademark offence, the police officer must obtain the Registrar of Trade Marks’ opinion on the facts and abide by it. It is obtained on application to the Trade Marks Office and is usually arranged by the complainant in advance.
How do I start criminal action against a counterfeiter? By an FIR at the police station with jurisdiction over the premises, with the registration certificate and evidence — trap purchases, investigator’s report, samples — or by a complaint to the magistrate. The complainant usually does the investigative work and presents a case ready to execute.
Should I pursue criminal or civil action against counterfeiters? Usually both. Criminal action gives speed, seizure and deterrence; civil action gives an injunction, disclosure and damages; customs recordal stops imports. In serious matters the three are run together.
Useful official resources
- IP India — trademarks — applying for the Registrar’s opinion
- National Cyber Crime Reporting Portal — online piracy and counterfeit sales
See our related notes on anti-counterfeiting actions, copyright infringement and remedies and customs recordal.
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