DHARAM PAL KHINDARIA Vs. DEEP CHAND DAGA

JUDGEMENT

(1.) THIS appeal is directed against the order dated 24-7-1974 passed by Additional City Magistrate Kanpur. The appellant is an Inspector of Western India Match Co. Ltd., Bareilly. He filed a complaint against the respondents under sections 78 and 79 of this U. P. Trade and Merchandise Marks Act, 1958. The Additional City Magistrate, Kanpur, who tried the case did not take any action against the respondents. Therefore, the complainant has filed this appeal. Undoubtedly Western India Match Company, called Wimco, Bareilly, manufactures safety matches. Their trade mark is 'Tekka'. The Label which is pasted on the match boxes displays marks of the 4 suits of the playing cards, namely, spade, heart, club and diamond. The match boxes of Wimco are also called Tash Marks. Mohan Lal Daga, respondent no. 2 is son of Deep Chand Daga, respondent no. 1. These two respondents and Ganesh Mal Bapal, respondent no. 3 are said to be the partners of Orient Match Company and Match Marketing Company, Sivakasi, district Ramnad in the State of Madras. These companies were getting safety matches manufactured from Ranga Match Work and Radha Match Works in Thayilpatti and Parhaickampatti in district Ramnad. The label on the match boxes manufactured by Orient Match Company and Match Marketing Company was 'Chaukhat'. THIS label contained four marks of diamond, one of the four suits of the playing cards,, In October, 1966, the Orient Match Company sent two consignments of chaukhat brand safety matches to Kanpur to self (Exs. Ka-20 and Ka-21). THIS Company ultimately submitted two bills of these consignments to M/s. Ratan Lal Jain and Sons, 52/34 Nayaganj, Kanpur on 27-10- 1966 for Rs. 9, 557. 73 P. each. Or 28-10-1966 Deep Chand Daga, respondent, received payment of the amount of the two bills from M/s. Ratan Lal Jain and Sons (vide Exs. Ka-23 and Ka. 24). The grievance of the appellant was that the chaukhat label was deceptively similar to the Tekka label, that the respondents had infringed on the trade mark of Wimco, that the Chaukhat brand safety matches were sold by the respondents at Kanpur and that therefore, they were liable to be punished under sections 78 and 79 of the Trade and Merchandise Marks Act, 1958. Mohan Lal Daga and Deep Chand Daga denied the allegations of the complainant. Deep Chand Daga asserted that the complainant had brought the case with a view to put down his cottage industry. Mohan Lal Daga asserted that the complaint had been filed with a view to bring pressure on him to stop the sale of his father's products. Ganesh Mal Havel showed ignorance in respect of the allegations made by the complainant. He asserted that he remained a partner of Orient Match Marketing Company upto March 31, 1966.

(2.) TO prove his case the complainant examined himself, Shanker Das, Salig Ram Bajpai, Chhotey Lal, Phool Chand, Wahidul Hasan and Om Prakash, PWs. 1 to 7 and filed some papers. One of the papers (Ex. Ka. 17) is copy of the judgment dated 10-11-1971 of a civil suit decided at Jabalpur restraining the respondents from using Chaukhat Label on their match boxes. Another paper is an order of the Joint Registrar of Trade Marks, Bombay, refusing to register Chaukhat trade mark of the respondents, Exs. Ka. 2 and Ka. 3. The complainant had brought a similar complaint at Bareilly. The Magistrate held that he could not take any action because the safety matches were manufactured at Madras and Chaukhat brand match boxes were not sold at Bareilly. The complainant then filed criminal appeal no. 2275 of 1970 in this Court which was dismissed on 29-11- 1973. The order of the Magistrate acquitting the respondents under sections 78 and 79 was upheld.

(3.) SECTION 78 of the Trade and Merchandise Marks Act, 1958 punishes a person who falsifies any trade mark or falsely applies to goods any trade marks or makes, disposes of, or has in his possession any die etc. for the purpose of falsifying a trade mark or applies any false trade description or tampers with, alters or affaces an indication of origin.