STATE OF U.P. Vs. RAM KISHORE

JUDGEMENT

(1.) This is an appeal by the State of Uttar Pradesh in a case in which one Ram Kishore was convicted under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 (herein after called the Act) by a 1st Class Magistrate of Varanasi, but was acquitted by the Sessions Judge on the ground that the prosecution was barred by limitation and acquiescence.

(2.) The firm of M/s. Nanduram Khedan Lal (hereinafter referred to as the complainant firm) are the proprietors of the 'Titlee' brand trade mark in respect of chewing tobacco manufactured and sold by them. The word 'Titlee' was registered as a trade name or mark on 12-5-1952 for the chewing tobacco manufactured by the complainant firm. The device containing pictures of butterflies and labels with which their goods were packed was also similarly registered to identify the goods manufactured by the complainant firm. In the city of Varanasi there was another firm of the name of Laxmi Vilas Karyalaya (hereinafter described as the respondent firm) which carried on business of selling chewing tobacco under the name of 'Titlee' which is a pet bird. The name and mark of the respondent firm were not registered. On 24-11-1960 Vishwakant Mittal, Inspector, I. T. M., came to know that the respondent firm was manufacturing and selling chewing tobacco under the false trade mark of the complainant firm. He made a report (Ex. Ka-1) on the same day to the Sub-Divisional Magistrate, Varanasi alleging the use of counterfeit trade mark by the respondent firm and prayed that suitable action be taken in the matter. The Magistrate passed an order directing the Station Officer, Chetganj, Varanasi to investigate the case. During the search of the shop of the respondent firm conducted by the police a number of labels of big and small size bearing marks similar to those of the complainant's trade mark were recovered. Several wrappers containing devices similar to those of the complainant's trade mark were also found in the shop of the respondent. The respondent was thereupon prosecuted under Sec. 78 (falsifying the trade mark of the complainant firm and falsely applying to his goods the said trade mark), as also under Sec. 79 of the Act (selling goods to which a false trade mark is applied).

(3.) The accused-respondent denied the prosecution allegations and claimed that the label bearing the word 'Titil' was his own trade mark which had been in use since two decades. He asserted that in the year 1955 the complainant firm had sent him a notice alleging infringement of their trade mark to which he replied that he had never used 'Titlee' trade mark and that his goods with the trade mark 'Titil' had been introduced into the market long before the goods of the complainant came to be manufactured and sold with the trade mark 'Titlee'. It was said that the present complaint was barred by Sec. 92 of the Act as the same had been filed long after three years of the alleged infringement of the complainant's trade mark. The respondent further stated that as the complainant did not take any action against the respondent firm in respect of the alleged infringement within 3 years from 1955 when he acquired knowledge of the alleged infringement and allowed the respondent's goods to be sold in the market without any protest, the complaint was also barred by the principle of acquiescence. The prosecution case was that the respondent had put his goods in the market in such packages as to pass them off as of the complainant's manufacture and that this was calculated to lead purchasers to believe that they were purchasing the complainant's goods. A comparison of the respective trade marks used by the complainant and the accused would go to show that the trade mark under which the complainant's goods are produced and sold was 'Titlee', i.e. a butterfly. The device used on the complainant's goods consisted of three pictures of butterflies, whereas on the goods of the respondent firm the device used was of four butterflies. The colour on the labels or get up of the complainant's firm was yellow-green, whereas the colour of the labels of the respondent firm was leaf-green. The colour of both the sets of butterflies was similar. One thing which may be noticed at this stage is that although the respondent used the trade mark 'Titil' on his goods the device contained pictures of butterflies and not of birds.