Chapter XII - Offences, Penalties and Procedure
Section 105
Section 105: Repeat-conviction punishment
A further conviction under section 103 or 104 after an earlier conviction under either provision attracts the enhanced framework.
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Need advice on Section 105?
This article is for general information. Refer to the Trade Marks Act, 1999 official text for the official provisions. If you need professional advice for your situation, contact Bizeneed.
Statutory text
Bare law
Whoever having already been convicted of an offence under section 103 or section 104 is again convicted of any 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 and with fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:
Provided that the court may, for adequate and special reason to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than one year or a fine of less than one lakh rupees:
Provided further that for the purposes of this section, no cognizance shall be taken of any conviction made before the commencement of this Act.
Rule and business relevance
The stated range is one to three years of imprisonment and ₹1 lakh to ₹2 lakh fine. The court can go below the stated minimum for adequate and special reasons recorded in the judgment. A conviction before this Act commenced is not counted for this section.
Limits and related provisions
An allegation or pending earlier case is not the prior conviction described here. Check the offence, conviction sequence and commencement exclusion before applying the enhanced range.
Hypothetical business example
Hypothetical example: A trader convicted under section 104 is later convicted under section 103. The court examines the prior conviction and the statutory provisos before sentencing.
Practical decision flow
Obtain both conviction records and their legal provisions.
Check the sequence and exclusion for pre-commencement convictions.
Apply the enhanced range and any properly recorded sentencing reasons.
Applying the Act and current procedure
Read the statutory rule together with the applicable Trade Marks Rules, current Registry directions and the facts of the particular mark. Forms, fees and procedural requirements should be checked against their current official source before filing.
Practical checklist
Do
- Obtain both conviction records and their legal provisions.
- Check the sequence and exclusion for pre-commencement convictions.
- Apply the enhanced range and any properly recorded sentencing reasons.
Avoid
- An allegation or pending earlier case is not the prior conviction described here. Check the offence, conviction sequence and commencement exclusion before applying the enhanced range.
Glossary
- Prior conviction
- The earlier conviction under section 103 or 104 required by this section.
- Enhanced minimum
- The higher starting imprisonment and fine amounts, subject to the proviso.
Frequently asked questions
Does a prior accusation suffice?
No. The section requires a prior conviction.
Are pre-commencement convictions counted?
The second proviso excludes them for this purpose.
Can the court go below the enhanced minimum?
Yes, for the recorded adequate and special reasons required by the provision.
Need help applying this provision to your situation?
Contact BizeneedLast updated 10 October 2026