Spurious goods

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Introduction
Spurious goods—counterfeits, imitations and unauthorised look‑alikes of branded products—are a perennial problem in Indian markets. They harm consumers (safety, health and deception), infringe intellectual property rights, dilute brand goodwill, distort competition and deprive the exchequer of legitimate revenue. For practitioners, “spurious goods” is not a single legal category but a fact complex that attracts multiple civil, criminal and regulatory remedies. This article maps the legal architecture, explains how spurious‑goods disputes are litigated and investigated in practice, summarises controlling judicial principles and sets out pragmatic strategies for litigators and in‑house counsel.

Core Legal Framework
Primary statutes and provisions that govern or are routinely invoked in spurious‑goods cases in India:

  • Trade Marks Act, 1999 — Section 29 (Infringement): establishes civil liability where a person uses a mark identical with or deceptively similar to a registered mark in relation to goods or services. Remedies include injunctions, damages/ account of profits and delivery up/destruction of infringing goods.
  • Trade Marks Act, 1999 — Penal provisions and offences (see also provisions in Chapters on penalties and offences): the Act provides criminal sanctions for certain wrongful use of registered marks (penalties and imprisonment for offences such as counterfeiting and selling goods bearing a fake trademark). (Practitioners should rely on the relevant penal Sections in the Act as enacted and amended for precise criminal instruments.)
  • Copyright Act, 1957 — Sections 51–63 (Civil and criminal remedies): for pirated copies of copyrighted works (books, software, audiovisual goods).
  • Indian Penal Code, 1860 — Section 420 (Cheating and dishonestly inducing delivery of property), Section 463 (Forgery — definition), Section 465 (Punishment for forgery), Section 471 (Using as genuine a forged document), and other sections depending on facts (criminal liability may follow when deception and fraud are present in sale/packaging).
  • Consumer Protection Act, 2019 — Section 2 and provisions relating to unfair trade practices and misleading representations: sale of spurious goods often amounts to an unfair trade practice and a deficiency in service/goods under consumer law.
  • Drugs and Cosmetics Act, 1940 and Food Safety and Standards Act, 2006 — both contain specific definitions and penal provisions for spurious/adulterated drugs and food products; where “spurious” goods pertain to regulated categories (drugs, cosmetics, food), specialised statutes govern seizure, prosecution and standards.
  • Customs Act, 1962 and allied legislation — for interdiction of counterfeit/spurious goods at ports of entry; holds significance for import of counterfeit goods and border enforcement.
  • Criminal Procedure Code, 1973 — Sections concerning seizure, search and arrest; and the Code of Civil Procedure, 1908 — Order XXXIX (interim injunctions), Order XXXVIII (discharge of plaintiffs) and inherent powers for ancillary reliefs such as Anton Piller‑type orders and search and seizure relief in IP suits.

Practical Application and Nuances
How disputes over spurious goods play out in the Indian legal system, and what proof and procedure actually look like.

  1. Allegation framing — civil, criminal, regulatory or mixed:
  2. Practitioners must decide early which forum(s) to invoke. Brand owners commonly pursue a two‑pronged approach: (a) civil suit under the Trade Marks Act/Passing‑off for urgent interlocutory relief (injunctions, Anton Piller/search and seizure; delivery up); and (b) criminal complaint or FIR under the relevant criminal provisions and/or the Trade Marks Act’s penal offences to trigger police/criminal investigation and deterrence.

  3. Where goods concern regulated categories (drugs, food) administrative enforcement (Drugs Controller/FSSAI) may be more urgent and effective than ordinary police action.

  4. Interim remedies (day‑to‑day practice):

  5. Ex parte injunctions and Mareva/Anton Piller‑type relief: Indian courts routinely grant interim injunctions and search and seizure orders in IP suits to prevent destruction of evidence and to secure infringing stock. Key practicalities: pleading of clear prima facie case, balance of convenience and irreparable harm; detailed, specific proposed order and strict safeguards to avoid abuse of Anton Piller relief.

  6. Preservation of samples: courts usually permit seizure of samples for laboratory testing and mark them as ‘samples’ with chain‑of‑custody directions. Courts insist on inventory and quick lab analysis.

  7. Evidence to establish “spuriousness”:

  8. Comparative mark analysis: side‑by‑side photographs, packaging, labels, hang tags, holograms, barcodes and placement of markers. Evidence should be demonstrative and precise: point out identical features and proximate consumer confusion factors.
  9. Trade invoices, purchase records and supply chain evidence: bills of entry, invoices, distribution agreements, and bank records showing flow of goods and profits.
  10. Expert evidence / laboratory reports: for goods where composition matters (drugs, cosmetics, electronics), lab certificates from accredited labs (NABL accredited where possible) are decisive to show inferiority/unsafe composition.
  11. Test purchases and sample sealing: procurement of samples from open market, proper sealing, and maintenance of chain of custody before lab testing.
  12. Confession/communications/network evidence: WhatsApp messages, order records from online marketplaces, seller accounts, photographs of manufacturing/warehousing (often obtained via civil search).

  13. Evidence of bad faith: prior notices ignored, deliberate replication of trade dress, attempts to destroy evidence — affects relief magnitude, costs and criminal culpability.

  14. Burden of proof and standards:

  15. In civil trademark suits, plaintiff must prove ownership/validity of mark and that defendant’s use causes confusion or is deceptively similar (Section 29 tests). Where defendant sells goods bearing plaintiff’s registered mark without authority, presumption of infringement arises in many factual matrices.
  16. In criminal prosecutions (under penal provisions of the Trade Marks Act or IPC), prosecution must prove mens rea/dishonest intention according to the statutory offence charged; standard is beyond reasonable doubt.

  17. Administrative actions (FSSAI/Drugs Controller) often operate on lower standard but permit immediate preventive relief (seizure, recall).

  18. Remedies in practice:

  19. Civil: interlocutory injunctions, Anton Piller orders, final injunction, damages or account of profits, destruction of infringing stock, delivery up, recall notices, publication of judgment.
  20. Criminal: prosecution, seizure and destruction of goods, fines and imprisonment (depending on statute and gravity).
  21. Regulatory: product recall, licence suspension/cancellation, market stop orders.

  22. Border measures: provisional detention and seizure by customs, recordal and cooperation with brand owner.

  23. Enforcement against e‑commerce and online sellers:

  24. Notice & takedown procedures on marketplaces (per marketplace policies and IT Act safe‑harbour rules) are often the fastest route. But takedown is interim — coordinate takedown with civil suits for preservation (Anton Piller) and disclosure of seller identity.
  25. Subpoenas/Orders for disclosure to platforms and payment processors: courts can direct disclosure to trace payments and supply chains.

Landmark Judgments
Two instructive Supreme Court decisions which shape litigation strategy and judicial reasoning in spurious‑goods cases:

  • Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd., (2001) 5 SCC 73
    Principle: The Supreme Court refined the test for deceptive similarity and likeliness of confusion in claims of trademark infringement/passing off. The Court emphasised a holistic assessment: not a literal comparison of marks alone, but a global assessment of get‑up, overall impression on the consumer, the nature of goods, and the degree of similarity that could cause deception. For practitioners, Cadila underscores the need for contextual, not merely technical, comparisons and the importance of consumer perception evidence.

  • M/S. Dabur India Ltd. v. M/S. Sunmark Exports Ltd. and others (illustrative IP enforcement jurisprudence)
    (Practitioners should consult Supreme Court and High Court rulings that permit search and seizure/Anton Piller relief where plaintiffs demonstrate strong prima facie case and give safeguards; many High Courts have laid down procedural checklists for such reliefs.)
    Principle: Courts are willing to grant immediate search and seizure or inspection relief where there is credible evidence that infringing stock will be destroyed and where detailed, specific orders with safeguards (inventory, independent monitors, sealed samples) are proposed.

(Practical note: always cite the latest precedents from the Supreme Court and the relevant High Court for Anton Piller/search and seizure, as courts have outlined procedural safeguards and costs conditions. Cadila is indispensable for deceptive similarity.)

Strategic Considerations for Practitioners
How to convert legal theory into courtroom wins and enforcement success.

  1. Choose the forum and the sequencing:
  2. Immediate priority: preserve evidence and stop infringing sales. Start with civil suit for interim injunction + search and seizure and simultaneously initiate takedown procedures on online platforms.
  3. If goods are dangerous (drugs, cosmetics, food), trigger regulatory authority first for rapid seizure and recall.

  4. Consider criminal complaint selectively: it can deter but may be slow; ensure police in the jurisdiction have prior experience handling IP or commercial crimes or involve the Anti‑Counterfeiting Cell/CBN where appropriate.

  5. Prepare the factual matrix meticulously:

  6. Document chain of supply — from importer/manufacturer to retailer. A weak or missing chain weakens claims for delivery up, accounts and for criminal prosecution.
  7. Preserve and lot‑mark samples, take photographs, and obtain forensic reports from accredited labs quickly.

  8. Fix an experienced local counsel where raids and seizures are to be executed; execute ex parte relief with detailed proposed orders and independent local supervisors.

  9. Draft orders for search and seizure with safeguards:

  10. Courts penalise lawyers/clients for overbroad orders. Provide a narrowly framed list of reliefs, specify locations, name authorised persons, preserve confidentiality, and propose an independent neutral (amanuensis or court‑appointed commissioner) to inventory seized items.

  11. Be prepared to post an undertaking where courts demand; calculate the risks.

  12. Evidence‑building to counter common defences:

  13. Defendant may claim bona fide manufacture, legitimate license, gap in registration, or different class of goods. Anticipate and obtain registration details, licensing records or their absence; deploy consumer surveys, expert reports and lab analyses.

  14. For passing‑off suits, prepare evidence of reputation and goodwill (sales figures, advertising spend, market surveys).

  15. Remedies and commercial resolutions:

  16. Injunctions and damages are remedies of decree; but often commercial settlements (cease and desist, licensing, compelled recall, cash settlement, structured destruction under supervision) provide faster relief. Draft settlement agreements with full release, liquidated damages, confidentiality, and inspection rights for future compliance.

  17. Use criminal threats sparingly — wrongful or premature criminal complaints can backfire and invite defamation/counterclaims.

  18. Pitfalls to avoid:

  19. Overreach in interim orders: ask for reasonable, specific reliefs; avoid broad searches of premises not directly related to the alleged infringement.
  20. Poor chain‑of‑custody for samples: improperly sealed or handled samples may be discounted by courts and labs.
  21. Ignoring parallel regulatory remedies: e.g., in spurious drug cases, failure to alert the Drugs Controller delays public safety action.
  22. Neglecting online enforcement: failure to use marketplace notification/takedown mechanisms allows infringement to continue despite suits.
  23. Relying only on trademark registration: registration is powerful but not determinative—courts will assess deceptive similarity, get‑up and reputation.

Conclusion
“Spurious goods” litigation in India requires a hybrid, evidence‑driven strategy: swift interim civil relief to preserve evidence, parallel administrative action where product safety is at stake, selective criminal prosecution for deterrence, and careful use of online takedown mechanisms. Key practical imperatives are: (1) build a watertight evidentiary record (samples, lab reports, chain of supply), (2) tailor orders narrowly and include procedural safeguards, (3) deploy marketplace and customs remedies for rapid interdiction, and (4) be prepared to negotiate robust commercial settlements that include future monitoring. With the correct sequencing and meticulous factual preparation, practitioners can convert the legal architecture (trademark/copyright law, consumer and regulatory statutes, and criminal provisions) into decisive enforcement and client relief.