Sections 116 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Three short provisions complete the prosecution machinery. Section 116 makes the port of shipment prima facie evidence of where imported goods were made. Section 117 lets the court award costs to either side. Section 118 closes the door on a prosecution begun more than three years after the offence, or two years after the prosecutor discovered it, whichever expires first. Time limits like this are why early legal dispute resolution advice matters.
For goods brought into India by sea, evidence of the port of shipment is prima facie evidence of the place or country where the goods were made or produced. In any prosecution the court may order costs to be paid by the accused to the complainant or by the complainant to the accused, recoverable as if a fine. A prosecution must start within three years of the offence or two years of its discovery by the prosecutor, whichever expires first.
Section 116: evidence of origin of goods imported by sea
The text: "In the case of goods brought into India by sea, evidence of the port of shipment shall, in a prosecution for an offence under this Act or under clause (b) of Section 112 of the Customs Act, 1962 (52 of 1962), relating to confiscation of goods under clause (d) of Section 111 and notified by the Central Government under clause (n) of sub-section (2) of Section 11 of the said Act for the protection of trade marks relating to import of goods, be prima facie evidence of the place or country in which the goods are made or produced."
| Element | Text |
|---|---|
| Goods covered | Goods brought into India by sea |
| Proceedings covered | A prosecution for an offence under the Trade Marks Act, or under clause (b) of section 112 of the Customs Act, 1962 relating to confiscation of goods under clause (d) of section 111 of that Act, where notified under clause (n) of section 11(2) of that Act for the protection of trade marks relating to import of goods |
| Evidence | Evidence of the port of shipment |
| Effect | Prima facie evidence of the place or country where the goods are made or produced |
"Prima facie" means the shipment port counts as evidence of origin unless it is displaced; the section does not say how it can be displaced. It applies only to sea imports. For goods arriving by other routes, the section is silent. It also does not describe how customs treats goods bearing false marks; that is dealt with in section 140 and in border measures.
Example. A container of "Sunbeam" branded fans, marked as made in a particular country, arrives at an Indian port. The bill of lading shows the port of shipment in a different country. In a prosecution to which section 116 applies, the port of shipment is prima facie evidence of where the fans were made, which can test the "made in" claim on the goods.
Section 117: costs of defence or prosecution
"In any prosecution under this Act, the court may order such costs to be paid by the accused to the complainant, or by the complainant to the accused, as the court deems reasonable having regard to all the circumstances of the case and the conduct of the parties and the costs so awarded shall be recoverable as if they were a fine."
- Either direction. The court may order costs against the accused or against the complainant.
- Test. What the court "deems reasonable", with regard to all the circumstances and the conduct of the parties.
- Recovery. Costs are recoverable "as if they were a fine".
The section sets no amount, no scale and no formula. A complainant who starts a prosecution carelessly can be ordered to pay the accused; an accused who has plainly infringed can be ordered to pay the complainant.
Section 118: limitation of prosecution
The text: "No prosecution for an offence under this Act or under clause (b) of Section 112 of the Customs Act, 1962 (52 of 1962), relating to confiscation of goods under clause (d) of Section 111 and notified by the Central Government under clause (n) of sub-section (2) of Section 11 of the said Act for the protection of trade marks, relating to import of goods shall be commenced after expiration of three years next after the commission of the offence charged, or two years after the discovery thereof by the prosecutor, whichever expiration first happens."
| Limb | Period | Runs from |
|---|---|---|
| First | Three years | The commission of the offence charged |
| Second | Two years | The discovery of the offence by the prosecutor |
| Which governs | Whichever expiration first happens |
Worked examples.
| Commission | Discovery by prosecutor | Three-year limb ends | Two-year limb ends | Last day to commence |
|---|---|---|---|---|
| 1 March 2024 | 1 June 2024 | 1 March 2027 | 1 June 2026 | The earlier: 1 June 2026 |
| 1 March 2024 | 1 January 2026 | 1 March 2027 | 1 January 2028 | The earlier: 1 March 2027 |
In the first row the prosecutor found out quickly, so the two-year limb is the shorter one. In the second, discovery came late and the three-year limb from commission is the shorter. Dates in the table are for illustration only and the exact day of expiry is a matter of counting that the section does not spell out.
The section says "commenced", not "concluded". It speaks of discovery "by the prosecutor", and does not define who that is in a complaint filed by a private brand owner or in a police case; we do not supply a definition.
Note that the Jan Vishwas Act, 2023 changed the consequence of a section 107 contravention to a penalty adjudicated under section 112A. Section 118 speaks of "prosecution for an offence", and the Jan Vishwas Act does not amend it. The section is worded only for prosecutions and does not say whether the time limit also applies to adjudication of a penalty, so take advice if that question arises.
How the three fit together
- Section 116 helps prove where goods came from.
- Section 117 is about who pays the cost of the case.
- Section 118 is about how late a case can be started.
Practical points
- Brand owners should record the date of first discovery of a counterfeit, with proof; it may start the two-year clock.
- Do not wait for the three-year limit: the two-year limb can be shorter.
- Keep shipping documents showing the port of shipment of sea imports.
- Think about costs before you file; section 117 works both ways.
Need help deciding whether a prosecution is still in time?
If you have found counterfeits or have been served with a complaint, the dates of commission and discovery decide whether a prosecution can begin at all. Our legal dispute resolution team can count both periods against your papers.
Key takeaways
- Section 116: for sea imports, the port of shipment is prima facie evidence of where goods were made or produced.
- Section 117: the court may award reasonable costs either way; they are recoverable as if a fine.
- Section 118: no prosecution after three years from the offence or two years from discovery by the prosecutor, whichever expires first.
- Section 118 also covers the Customs Act, 1962 provision described in the section.
Read next
- Sections 119–121: information on offences, abetment and permissible variation
- Section 115: cognizance of offences, search and seizure
- Border measures: customs seizure of counterfeit goods
- Criminal offences under the Trade Marks Act: sections 103–105
Disclaimer: Based on the Trade Marks Act, 1999 as amended by the Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Act, 2023, as consulted on 1 October 2026. Forms, fees and procedure are set by the Trade Marks Rules, 2017 as amended from time to time. This article is general information, not legal advice; check the official text before acting.