SHITAL PRASAD BURMAN Vs. MANBAHAL SINGH

JUDGEMENT

(1.) THE petitioner has been sentenced to pay a fine of Rs. 600 on a conviction for an offence under Section 482, Penal Code. THE complainant is a manufacturer of a patent medicine which has apparently acquired a reputation in fever cases and calls it by the name of Juri Tap. This is sold in a red coloured carton which, on one side has the figure of an emaciated man with the caption "Before Use", and, on the opposite panel, the figure of a healthy looking individual with the "caption", "After Use." On the third panel is the name "Juri Tap" and a five pointed star. On the same panel the name and address of the manufacturer, that is to say, the complainant, is given. This is "Dabur Dr. S. K. Burman Limited, Calcutta." THE accused sells a similar medicine in a carton very much like that of the complainant's carton. It is the same colour ; it has the same pictures of the emaciated and the healthy man. On the third side of the carton is the name "Juri Tap," but above this name there are the words "Amritsudha." On this panel the name and address of the manufacturer is given as S. P. Burman and Company, Benares, Cawnpore." THEre is also under the name "Juri Tap" a six-pointed star. Near the star on the complainant's carton are the initials S.K.B. whereas is the centre of the star of the petitioner's carton is the word "Om" in Hindi. To a casual observer the cartons are so alike that unless one took the. trouble to examine it more than cursorily it would be difficult not to be deceived into accepting the medicine in the petitioner's carton for the medicine in the complainant's carton.

(2.) SECTION 432 renders punishable the use of any falsa trade mark or any false property mark unless the user is able to prove that he acted without intent to defraud. The expression trade mark is defined In SECTION 478, as. amended by the Merchandise Marks Act, 1941,. as including a trade mark registered under the Trade Marks Act, 1940, and any mark use in relation to goods for the purpose of indicating, or go as to indicate, a connection in the course of trade between the goods and some person having the right to use the mask. At the relevant time no part of the design on the carton of the complainant or the petitioner had been registered under the Trade Marks Act, 1940, although I am told applications for ragistration were pending. This case, therefor has to be decided with reference to the second, part of the definition of trade mark given in SECTION 478 Penal Code. The complainant relied on declaration which had been made in his application for registration which referred to a previous declaration made in 1905 and also to catslogues which he had issued over a course of many years for the purpose of establishing that he had been using this particular carton and device on it for a very long time. It has how ever, been pointed out in the ease of Loke Nath v. Ashwivi Kumar De, I.L.R. (1938) 1 Clause 665: (A.I.R. (25) 1938 Clause 216 : 39 Cr. L.J 537 that a declaration of ownership for the purpose of registration is not evidence of legal ownership of a trade mark for such a declaration represents nothing more than the opinion and claim of the declarant. What the Court has to datermine is whether the trade markclaimed by the complaint is distinctive mark, that is to say, a mark which is adopted to distinguish the goods of the proprietor of the particular trade mark from those of other persons. For that purpose it is necessary to ascertain the extent to which the user of that mark has renders it in effect distinctive of the goods is question For that purpose the evidence that is required is that persons bought the complainants medicine because it was contained in his carton that is to say, a person who received the complainant's carton would rely on finding in it the medicine which he intended to purchase If there was such evidence then any one selling medicine in a carton so similar to that of the complainant as to mislead a purchaser into believing that he was actually purchasing the complainant's medicine would be infringing the compalinant's Trade Mark. But in this case there is no such evidence. In fact, the only person who appears to have given any relevant evidence in that matter at all says that this medicine is mostly used by illiterate villagers and that what they ask for is "Burman's Juri Tap." If the complainant had established a Trade Mark in the name Burman, the petitioner would, in my opinion, be guilty under SECTION 482 in this case. But, as was pointed out in In re Cadbury Brothers Application, (1915) 1 Sechedule 331: (84 L. J. Sechedule 242) the right to a surname that a man uses is shared with every person who elects to use the same name, and consequently, he has got about as much monopoly in it as he has in the air that he breathes. It is true that the surname of the petitioner is not Burman, nor is he a Burman by caste, but he does apparently use that name for his trade purposes and is entitled to do so, so long as he does not infringe the right of anybody else, that is to say, the Trade Mark of anybody who has secured a right to the use of the name Burman as a Trade Mark, which it is very difficult to prove in the case of a surname. I would have been compelled and been happy to uphold the conviction of the petitioner in this case if there were evidence on record to satisfy me that for any considerable time the public who bought fever mixture under the name Juri Tap" did so on the strength of its being sold in the complainant's carton. But as I have already indicated, the evidence in that respect is lacking. The conviction and sentence of the petitioner must, therefore, be set aside.