The Department of Consumer Affairs, through a notification dated 5th November, 2019, has issued a draft amendment to the Emblems and Names (Prevention of Improper Use) Act, 1950 which proposes to increase the penalty in case of contravention of Section 3* which deals with prohibition of use of certain emblems and names.
Suggestions / views / comments are invited from the stakeholders on the proposed amendment within 45 days; i.e., 20th December, 2019, which may be addressed to dircwf-ca@nic.in.
- Prohibition of improper use of certain emblems and names.—
Notwithstanding anything contained in any law for the time being in force, no person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade mark or design, any name or emblem specified in the Schedule or any colourable imitation thereof without the previous permission of the Central Government or such officer of Government as may be authorised in this behalf by the Central Government.
The proposed amendments have been highlighted in the table below:
| Principal Act | Draft Amendment | Implications |
| Section 5: Penalty-
Any person who contravenes the provisions of section 3 shall be punishable with fine which may extend to five hundred rupees. |
Section 5: Penalty:
(1) Any person who contravenes the provisions of section 3 shall be liable on conviction to a fine not exceeding Rs. 1 Lakh. |
The Draft Amendment has stepped up the penalty for improper use of certain emblems and names. Presently the penalty is Rs. 500. The same is proposed to be increased to Rs. 1 Lakh. |
| The Principal Act does not provide for dealing with repeat offence. | Section 5
(2) If any person after having been previously convicted of an offence punishable under this Act subsequently commits and is convicted of the same offence, he shall be liable to –
(i) A fine which may extend up to Rs. 5 Lakhs
(ii) or with imprisonment for a term which may extend to 6 months
(iii) or both |
The Principal Act is presently silent on providing a penalty for repeated offence for an offence punishable under the Act.
As per the proposed amendment, if any person after being previously convicted of an offence is convicted of the same offence again, following penalties is proposed to be imposed:
(i) A fine which may extend up to Rs. 5 Lakhs
(ii) or with imprisonment for a term which may extend to 6 months
(iii) or both |
| The Principal Act is silent on onus of proof of violation under Section 3. | (3) In any prosecution for an offence against the section 3, the onus of providing that any contravention / alteration was lawfully authorised shall be on the defendant. | The Principal Act was silent on the onus of proof of violating Section 3.
As per the proposed amendment, in any prosecution for an offence under Section 3, the onus of proof will lie on the defendant to prove that the contravention under Section 3 was lawfully authorized. |
Source: Department of Consumer Affairs
