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CHAPTER X: INFRINGEMENT, OFFENCES, PENALTIES AND PROCEDURE

BananaIP Counsels > The Protection of Plant Varieties and Farmers Rights Act > CHAPTER X: INFRINGEMENT, OFFENCES, PENALTIES AND PROCEDURE

CHAPTER X: INFRINGEMENT, OFFENCES, PENALTIES AND PROCEDURE

 

64. Infringement.—

 

Subject to the provisions of this Act, a right established under this Act is
infringed by a person—
(a) who, not being the breeder of a variety registered under this Act or a registered agent or
registered licensee of that variety, sells, exports, imports or produces such variety without the
permission of its breeder or within the scope of a registered licence or registered agency without
permission of the registered licensee or registered agent, as the case may be;
(b) who uses, sells, exports, imports or produces any other variety giving such variety, the
denomination identical with or deceptively similar to the denomination of a variety registered under
this Act in such manner as to cause confusion in the mind or general people in identifying such
variety so registered.

 

65. Suit for infringement, etc.—

 

(1) No suit—
(a) for the infringement of a variety registered under this Act; or
(b) relating to any right in a variety registered under this Act,
shall be instituted in any court inferior to a District Court having jurisdiction to try the suit.
(2) For the purposes of clauses (a) and (b) of sub-section (1), “District court having jurisdiction” shall
mean the District Court within the local limit of whose jurisdiction the cause of action arises.

 

66. Relief in suits for infringement.—

 

(1) The relief which a court may grant in any suit for
infringement referred to in section 65 includes an injunction and at the option of the plaintiff, either
damages or a share of the profits.
(2) The order of injunction under sub-section (1) may include an ex parte injunction or any
interlocutory order for any of the following matters, namely:—
(a) discovery of documents;
(b) preserving of infringing variety or documents or other evidence which are related to the
subject-matter of the suit;
(c) attachment of such property of the defendant which the court deems necessary to recover
damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.

 

67. Opinion of scientific adviser.—

 

(1) When the court has to form an opinion upon any question of
fact or a scientific issue, such court may appoint an independent scientific adviser to suggest it or to
inquire and report upon the matter to enable it to from the desired opinion.
(2) The scientific adviser may be paid such remuneration or expenses as the court may fix.
Offences, penalties and procedure.

 

68. Prohibition to apply the denomination of a registered variety.—

 

(1) No person other than the
breeder of a variety registered under this Act or a registered licensee or registered agent thereof shall use
the denomination of that variety in the manner as may be prescribed.
(2) A person shall be deemed to apply the denomination of a variety registered under this Act who—
(a) applies it to the variety itself; or
(b) applies it to any package in or with which the variety is sold, or exposed for sale, or had in
possession such package for sale or for any purpose of trade or production; or
(c) places, encloses or annexes the variety which is sold, or exposed for sale, or had in possession
for sale or for any purpose of trade or production, in or with any package or other thing to which the
denomination of such variety registered under this Act has been applied; or
(d) uses the denomination of such variety registered under this Act in any manner reasonably
likely to lead to the belief that the variety or its propagating material in connection with which it is
used is designated or described by that denomination; or
(e) in relation to the variety uses such denomination in any advertisement, invoice, catalogue,
business letter, business paper, price list or other commercial document and such variety is delivered
to a person in pursuance of a request or order made by reference to the denomination as so used.
(3) A denomination shall be deemed to be applied to a variety whether it is woven in, impressed on,
or otherwise worked into, or annexed or affixed to, such variety or to any package or other thing.

 

69. Meaning of falsely applying denomination of a registered variety.—

 

(1) A person shall be
deemed to falsely apply the denomination of a variety registered under this Act who, without the assent of
the breeder of such variety,—
(a) applies such denomination or a deceptively similar denomination to any variety or any
package containing such variety;
(b) uses any package bearing a denomination which is identical with or deceptively similar to the
denomination of such variety registered under this Act, for the purpose of packing, filling or wrapping
therein any variety other than such variety registered under this Act.
(2) Any denomination of a variety registered under this Act falsely applied as mentioned in
sub-section (1), is in this Act referred to as false denomination.
(3) In any prosecution for falsely applying a denomination of a variety registered under this Act the
burden of proving the assent of the breeder of such variety shall lie on the accused.

 

70. Penalty for applying false denomination, etc.—

 

(1) Any person who—
(a) applies any false denomination to a variety; or
(b) indicates the false name of a country or place or false name and address of the breeder of a
variety registered under this Act in the course of trading such variety,
shall unless he proves that he acted, without intend to defraud, be punishable with imprisonment for a
term which shall not be less than three months but which may extend to two years, or with fine which
shall not be less than fifty thousand rupees but which may extend to five lakh rupees, or with both.

 

71. Penalty for selling varieties to which false denomination is applied, etc.—

 

Any person who sells, or exposes for sale, or has in his possession for sale or for any purpose of trade or production or any
variety to which any false denomination is applied or to which an indication of the country or place in
29
which such variety was made or produced or the name and address

which such variety was made or produced or the name and address of the breeder of such variety
registered under this Act has been falsely made, shall, unless he proves—
(a) that having taken all reasonable precautions against committing an offence against this
section, he had at the time of commission of the alleged offence no reason to suspect the genuineness
of the denomination of such variety or that any offence had been committed in respect of indication of
the country or place in which such variety registered under this Act, was made or produced or the
name and address of the breeder of such variety;
(b) that, on demand by or on behalf of the prosecutor, he gave all the information in his
possession with respect to the person from whom he obtained such variety; or
(c) that otherwise he had acted innocently,
be punishable with imprisonment for a term which shall not be less than six months but which may
extend to two years, or with fine which shall not be less than fifty thousand rupees but which may extend
to five lakh rupees, or with both.

 

72. Penalty for falsely representing a variety as registered.—

 

Whoever makes any representation with respect to the denomination of a variety or its propagating material or essentially derived variety or
its propagating material not being variety or its propagating material or essentially derived variety or its
propagating material registered under this Act, to the effect that it is a variety or its propagating material
or essentially derived variety or its propagating material registered under this Act or otherwise represents
any variety, or its propagating material, or essentially derived variety or its propagating material not
registered under this Act to the effect that it is registered under this Act shall be punishable with
imprisonment for a term, which shall not be less than six months but which may extend to three years, or
with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees, or with
both.

 

73. Penalty for subsequent offence.—

 

Whoever having already been convicted of an offence under
this Act is again convicted of such offence shall be punishable for the second and for every subsequent
offence with imprisonment for a term which shall not be less than one year but which may extend to three
years, or with fine which shall not be less than two lakh rupees but which may extend to twenty lakh
rupees, or with both.

 

74. No offence in certain cases.—

 

The provisions of this Act relating to offences shall be subject to
the right created as recognised by this Act and no act or omission shall be deemed to be an offence under
the provisions of this Act if such act or omission is permissible under this Act.

 

75. Exemption of certain persons employed in ordinary course of business.—

 

Where a person accused of an offence under this Act proves that in the ordinary course of his employment, he has acted
without any intention to commit the offence and having taken all reasonable precautions against
committing the offence charged, he had, at the time of the commission of the alleged offence, no reason
to suspect the genuineness of the act so charged as an offence and on demand made by or on behalf of the
prosecutor, he gave all the information in his possession with respect to the persons on whose behalf the
offence was committed, he shall be acquitted.

 

76. Procedure where invalidity of registration is pleaded by the accused.—

 

(1) Where the offence charged under this Act is in relation to a variety or its propagating material or essentially derived variety
or its propagating material registered under this Act and the accused pleads that the registration of such
variety or its propagating material or essentially derived variety or its propagating material, as the case
may be, is invalid and the court is satisfied that such offence is prima facie not tenable, it shall not
proceed with the charge but shall adjourn the proceedings for three months from the date on which the
plea of the accused is recorded to enable the accused to file an application before the Registrar under this
Act for the rectification of the Register on the ground that the registration is invalid.
(2) If the accused proves to the court that he has made such application within the time so limited or
within such further time as the court for sufficient cause allow, the further proceedings in the prosecution
shall stand stayed till the disposal of such application for rectification.

(3) If within a period of three months or within such extended time as may be allowed by the court,
the accused fails to apply to the Registrar for rectification of the Register, the court shall proceed with the
case as if the registration were valid.
(4) Where before institution of a complaint of an offence referred to in sub-section (1), any
application for the rectification of the Register concerning the registration of the variety or its propagating
material or essentially derived variety or its propagating material, as the case may be, in question on the
ground of invalidity of such registration has already been properly made to and is pending before the
Registrar, the court shall stay the further proceedings in the prosecution pending the disposal of the
application aforesaid and shall determine the charge against the accused in conformity with the result of
the application for rectification.

 

77. Offences by companies.—

 

(1) If the person committing an offence under this Act is a company,
the company as well as every person in charge of, and responsible to, the company for the conduct of its
business at the time of the commission of the offence shall be deemed to be guilty of the offence and shall
be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any
punishment, if he proves that the offence was committed without his knowledge or that he had exercised
all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been
committed by a company and it is proved that the offence has been committed with the consent or
connivance of, or that the commission of the offence is attributable to any neglect on the part of any
director, manager, secretary or other officer of the company, such director, manager, secretary or other
officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and
punished accordingly.
Explanation.—For the purposes of this section,—
(a) “company” means any body corporate and includes a firm or other association of individuals;
and
(b) “director”, in relation to a firm, means a partner in the firm.

 

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