Section 38 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.
Section 38 defines what it means to "falsify" a geographical indication and to "falsely apply" one to goods. It creates no punishment by itself; it supplies the definitions that sections 39 and 40 then use. If a rival is printing your indication on look-alike packs, our legal notice drafting team can turn these definitions into a cease-and-desist notice.
A person falsifies a geographical indication by making it, or a deceptively similar one, without the assent of the authorised user, or by altering, adding to or effacing a genuine one. A person falsely applies one by putting it, or a deceptively similar one, on goods or a package, or by reusing a branded package for other goods, again without assent. The result is called a false geographical indication, and in a prosecution the burden of proving assent lies on the accused.
Not touched by the amending Acts
Neither the Tribunals Reforms Act, 2021 nor the Jan Vishwas (Amendment of Provisions) Act, 2023 lists section 38 among the sections it changes, so the printed text is the current text. The punishment for the acts defined here is in section 39 and section 40.
Sub-section (1): falsifying a geographical indication
A person is deemed to falsify a geographical indication who, either:
- (a) without the assent of the authorised user of the geographical indication makes that geographical indication or a deceptively similar geographical indication; or
- (b) falsifies any genuine geographical indication, whether by alteration, addition, effacement or otherwise.
Clause (a) is about making the indication, for example carving a die, printing a label or weaving a mark. Clause (b) is about tampering with a genuine indication: changing a word, adding a place name, rubbing out a qualifier. "Deceptively similar" is defined in section 2 and is covered in a separate article of this series on section 2.
Sub-section (2): falsely applying a geographical indication to goods
A person is deemed to falsely apply to goods a geographical indication who, without the assent of the authorised user:
- (a) applies that geographical indication, or a deceptively similar one, to goods or any package containing goods; or
- (b) uses any package bearing a geographical indication that is identical with or deceptively similar to the geographical indication of such authorised user, for the purpose of packing, filling or wrapping any goods other than the genuine goods of the authorised user.
Clause (b) catches the person who never prints a label at all but fills someone else's genuine-looking boxes, bags or bottles with other goods. What counts as "applying" an indication is explained in section 37: it covers applying it to the goods, to a package, or using it in a way reasonably likely to lead to the belief that the goods are designated by it.
Sub-section (3): the label "false geographical indication"
Any indication falsified as in sub-section (1), or falsely applied as in sub-section (2), "is in this Act referred to as a false geographical indication". This one-line sub-section is a drafting convenience. Sections 39 and 40 speak of "a false geographical indication" and mean whatever sub-sections (1) and (2) describe.
Sub-section (4): burden of proof on the accused
"In any prosecution for falsifying a geographical indication or falsely applying a geographical indication to goods, the burden of proving the assent of proprietor shall lie on the accused."
In ordinary criminal trials the prosecution proves every element. Here, once the prosecution shows the indication was made or applied, it is for the accused to prove that the authorised user (the text of sub-section (4) says "proprietor") assented. Keep written permission for every use.
Drafting slip. Sub-sections (1) and (2) speak of the assent of the "authorised user", while sub-section (4) speaks of the assent of "proprietor". The text does not reconcile the two. A careful producer therefore keeps proof of assent from every person who could be said to hold the right: the registered proprietor and the authorised user.
At a glance
| Provision | Conduct | Key condition |
|---|---|---|
| 38(1)(a) | Makes the indication or a deceptively similar one | Without assent of the authorised user |
| 38(1)(b) | Alters, adds to or effaces a genuine indication | Any manner: "or otherwise" |
| 38(2)(a) | Applies the indication or a deceptively similar one to goods or a package | Without assent |
| 38(2)(b) | Uses a package bearing the indication for other goods | Goods other than the genuine goods of the authorised user |
| 38(3) | Name given to the result | "False geographical indication" |
| 38(4) | Burden of proving assent | On the accused |
Examples
Example 1. Rao Brothers print the name of an invented registered hill-tea indication on boxes of ordinary tea, with no permission from any authorised user. They have made the indication and applied it to goods: sections 38(1)(a) and 38(2)(a).
Example 2. A packer buys genuine empty boxes of Anand Weavers' registered indication from a scrap dealer and fills them with machine-made cloth. Under 38(2)(b) this is falsely applying the indication, even though the boxes themselves are genuine.
Example 3. A seller whose cloth carries the genuine mark crosses out "handwoven" from a tag that qualifies the indication. That is effacement under 38(1)(b).
What section 38 does not do
- It does not set any punishment; see sections 39 and 40.
- It does not require intent to defraud in its definitions; intent is dealt with in the defence in section 39.
- It does not say what proof of assent looks like; the text leaves it to the evidence in each case.
Practical points
- Producers: record each authorised user's permission in writing and keep it.
- Authorised users: control your packaging, including surplus and printers' spare stock.
- Rights holders: if you see look-alike packs, collect samples and invoices before writing to the other side.
Need help with a false geographical indication?
If someone is making or applying your geographical indication without assent, the first move is usually a well-built notice that tracks the words of section 38. Our legal notice drafting team can prepare it, and the evidence bundle behind it, so that you are ready if the matter goes further.
Key takeaways
- Section 38 defines falsifying and falsely applying; it does not punish by itself.
- Making a geographical indication or a deceptively similar one without assent is falsifying; so is altering or effacing a genuine one.
- Applying it to goods or packages, or reusing a branded package for other goods, without assent is falsely applying.
- The result is a "false geographical indication", and the accused must prove assent.
- Sub-sections (1), (2) and (4) use "authorised user" and "proprietor" differently; keep proof of both.
Read next
- Section 39: penalty for applying false geographical indications
- Section 40: penalty for selling goods with a false geographical indication
- Section 37: meaning of applying geographical indications
- Infringement of geographical indication: penalties
Disclaimer: Based on the Geographical Indications of Goods (Registration and Protection) Act, 1999 read with 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 rules made under the Act. This article is general information, not legal advice; check the official text before acting.