SRI NARAYAN Vs. MOHAMMAD ABU SALEH

JUDGEMENT

(1.) Criminal Revision No. 4 of 1940. This is a rule calling upon the Chief Presidency Magistrate of Calcutta and the complainant opposite party to show cause why the convictions and sentences passed on the petitioners should not be. set aside. The petitioners have been convicted of an offence under Section 486, I.P.C. The case for the prosecution was that they were selling in the market packets of biris to which were attached two labels which are counterfeits of labels employed as a distinctive mark of biris of which the complainant was the manufacturer. In support of the rule, it has been argued by Mr. Carden Noad firstly, that the labels which are associated with the goods of the complain, ant are not trade marks. Now, the definition of a trade mark as contained in Section 478, I.P.C., is in the following terms: A mark used for denoting that goods are the manufacture or merchandise of a particular person is called a trade mark.

(2.) Upon the evidence in the case and the learned Magistrate's findings, the complain, ant has been using his labels from the year 1933 and these labels have come to be associated in the market with his goods. The labels of the complainant are therefore undoubtedly a trade mark. This brings us to the second argument advanced by Mr. Carden Noad. His contention is that the complainant had no exclusive right to the labels which he claims as his. It seems to us that this contention is based upon a misconception. for the purposes of Section 486, it is not necessary that the mark in question should be the exclusive property of anybody. Whatever may be the law with regard to such matters as copy right or patents, there can be no question that the only consideration which is of importance I with reference to the provisions of Section 486 is whether the mark in question has come to be so identified with the merchandise of the person using the mark as to be regarded Jin the market as a distinctive mark to denote that particular merchandise. The Magistrate has so found and his finding is amply supported by the evidence. In the third place, it has been contended that in any event the labels which were attached to the biris which the accused were selling were not counterfeits of the complainant's labels. Counterfeiting has been defined in Section 28, Penal Code, in the following way: A person is said to counterfeit who causes one thing to resemble another thing, intending, by means of that resemblance, to practise deception, or knowing it to be likely that deception will thereby be practised. Explanation 1.--It is not essential to counter, feiting that the imitation should be exact. Explanation 2.--When a person causes one thing to resemble another thing, and the resemblance is such that a person might be deceived tnere by, it shall be presumed, until the contrary is proved, that the person so causing the one thing to resemble the other thing intended, by means of that resemblance, to practise deception or knew it to be likely that deception would thereby be practised.

(3.) The complainant's labels and those which the petitioners are convicted of having used are before us. They each consist of two slips of coloured paper bearing certain figures and words which are partly in the vernacular and partly in English. Looking at these labels side by side, we find the resemblance between them to be remark, able to a degree. The get-up and general appearance of the labels of the accused are so similar to those of the complainant that it is only by a close scrutiny that the differ, ences, such as they are, can be detected. We have no doubt in our minds that the class of persons to whom biris are sold would easily be deceived by the appearance of the accused's labels into supposing that the goods (that they were purchasing were those of the complainant. The question is really a question of fact and it is concluded by the Magistrate's findings. It is not necessary in the present case to lay down any proposition of law regarding the extent of similarity necessary to establish that one article is the counterfeit of another but if authority were needed upon such a question I would refer to the case of Emperor V/s. Tapidas Durlabhdas (1907) 9 Bom L.R. 732. In that case it was clearly laid down that; in order to prove that a trade mark is an imitation of the other, ifc is not necessary that there should be a resemblance in every case. It is sufficient if the resemblances are of such a nature as to be calculated to mislead an unwary purchaser. Again in the words of Lord Herschell in Hecla Foundry Co., V/s. Walker Hunter & Co. (1889) 14 A.C. 550 at page 555: It seems to ma therefore, that the eye must be the judge in such a case as this, and that the question must be determined by placing the designs side by side, and asking whether they are the same, or whether the one is an obvious imitation of the other.