(1.) THE appellant Hazarimal L. Shah was convicted under Section 79 of the Trade and Merchandise Marks Act 1958 and sentenced to pay a fine of Rs. 500, in default to undergo simple imprisonment for a period of three months, by the second Presidency Magistrate, Madras.
(2.) THE prosecution case is briefly this : Philips India Ltd. , a registered firm manufacturing and dealing in all varieties of Electrical goods under the distinctive trade mark Philips' is the complainant in this case. They are manufacturers of electrical lamps of 100 W, 60 W, 40 W and 25 W which earned a great reputation in the market. They have acquired exclusive right to use the trade mark. The complainant had information that some spun', ous and inferior quality bulbs under the trade mark 'philips' were being sold in the shop of the appellant at No. 128. A Nainiappa Naicker St. Madras. P. W. 4, B. Venkappa Naick, a Research Investigator of the Madras School of Social Work who usually used to purchase Philips bulbs for lighting his house, went to the shop of the appellant in November 1964 and purchased four bulbs as per bill Ex. P. 4. He suspected the genuineness of the bulbs as he found some change in the bulbs. When he rubbed at the bottom of the bulba the trade mack came off. He made a complaint Ex. P. 4 to the Philips Co. , and handed over the bulba purchased by him along with the bill Ex, P. l (a), issued by the appellant. P. W. 5, R. Govindao, an advocate also purchased bulbs from the shop of the appellant and they were found to be spurious. He also made a complaint to the Philips India Ltd. P. W. 1 Seshari, Manager, Customers Products Department, Philips India Ltd. , described the manner in which bulbs were packed and trade marks affixed. He stated that the bulbs were packed in card board cartons which bore emblems and word 'philips' and also the picture of a bulb. He checked the bulba produced by P. Ws. 4 and 5 and found them to be spurious and the marks "philips" found there were not genuine. He found three eye lida in the spurious bulbs whereas there must be two eye lida in the genuine Philips bulbs. The trade mark on the spurious bulbs was easily erasable with the fingernail; but it was not easy in the case of trade mark on genuine bulbs. The filament in the genuine bulb will not protrude at either end whereas it protruded on the spurious bulbs. The eye lids in the genuine bulbs were neatly circled whereas in spurious bulbs they were irregular. P. W. 1 also came to know that the appellant was living in the house opposite to his shop and was affixing seals on spurious bulba to make them look like the complainant's bulbs. P. W. 1 further stated that the cartons used by the appellant were also deceptively similar to the genuine cartons, though the trade marks on the false cartons were not neat and clear as on the genuine cartons.
(3.) ON an application by the complainant, a search warrant was issued by the Presidency Magistrate to search the shop and the house of the appellant and P. W. 8, the Sub-Inspector of Police, Elephant Gate Police Station, in pursuance of the warrant, searched the shop in the presence of P. W. 1 and one M. S. Krishnamurthi and recovered 141 bulbs of 60 W and 80 bulbs of 40 W with cartons, bearing the trade marks and emblems of Philips. He also recovered from the house of the appellant six bulbs (M. O. 6 series) without any markings of any trademark. These bulbs, on examination by P. W. 2, the Lighting Engineer in the firm of Philips India Ltd. , were found to be spurious and that they were being sold under the trademark "philips".