HAFIZULLAH HAMIDULLA Vs. SK. PAPA

JUDGEMENT

(1.) THE applicant made a complaint in the Court of the Bench Magistrates, Amraoti, under Section 482, I. P. C., alleging that the non-applicants had made railings of the same kind as those which he made and was selling them, and that, there being no difference between the railings sold by the non-applicants and his railings, the public could not recognize the difference and that he was thereby prejudiced and suffered damage. The non-applicants were discharged by the Honorary Magistrate, who held that there was a bona fide dispute as to whether the applicant had any particular trade-mark at all or whether the non-applicants were entitled to use the goods which they were using and that the matter should go to a civil Court. The applicant then applied for revision to the District Magistrate, who held that the patterns which had been registered by the applicant were not themselves a trade mark and that the manufacture of such railings or similar railing would not be an offence under Section 482, I. P. C. The applicant has now applied for revision to this Court.

(2.) IT seems to me clear that the view of the District Magistrate is correct and that the applicant has not established his exclusive right to a trade mark within the definition of Section 478, I. P. C., nor has he registered any design under Section 43, Patent and Designs Act. If therefore the non-applicants made railings of a similar pattern to those manufactured by the applicant, they have neither been guilty of using a false trade mark within the meaning of Section 482, I. P. C., nor have they rendered themselves liable under Section 53, Patent and Designs Act. The applicant has endeavoured to bring the offence within the definition of Section 6. Merchandise Marks Act, but that depends on whether any false description has been given to the goods sold by the non-applicants. I cannot however find that any such false trade description has been given or even alleged by the applicant. Mere imitation is no offence unless there is an infringement of a patent or copyright or there is an attempt to pass off goods as goods of another dealer or manufacturer either by using a false trade mark or false description or a trade mark or description likely to deceive purchasers by a deliberate imitation of a genuine mark or description or by falsely giving out goods as the goods of some other dealer or manufacturer. As an example of the use of a trade mark or description calculated to deceive purchasers, which was found to be an offence, I would cite the cases in Nilmony v. Durga Pada Banerji (1915) 16 Cr LJ 719 and Emperor v. Ganpat Sitaram AIR 1911 Bom 128. In the present case however it is not alleged that the non-applicants have ever given out that the railings made and sold by them were railings manufactured by the applicant or railings of that particular class or manufacture. Further it has not been alleged that they attached any distinguishing mark of any kind to the railings, which would deceive purchasers or make them believe that the railings were railings manufactured by the applicant.

(3.) IN any case however I do not understand what the declaration (Ex. P-1) really is. There is no system of registration of trade marks in India, and when such user has been proved the property of the person using the mark will be protected. I would refer to British American Tobacco Co. Ltd. v. Mahboob Buksh (1911) 38 Cal 210 and to Banarsi Das v. Emperor AIR 1928 Lah 186. Further, trade marks registered in England will also be protected. Now, the declaration (Ex. P-1) cannot be a declaration of registration of a trade mark; nor does it purport to be a declaration under Section 3(1), Patent and Designs Act, or under Section 43 (1) of that Act either for registration of patent or for registration of a design, and certainly no registration of any design has bean proved under the Patent and Designs Act. The declaration (Ex. P-1) therefore appears to me to have no value and does not show either that Messrs. Hafizullah Hamidullah have any property in a registered design or that they have acquired any trade mark by user. Further I am of opinion that neither the designs nor the numbers given in Exs. P-1 or P-2 could constitute a trade mark. According to English Common law, which, as held in The British American Tobbaco Co. Ltd. v. Mahboob Buksh (1911) 38 Cal 210, determines the law of India in this matter, a registrable trade mark must contain or consist of at least one of the following essential particulars : (1) The name of a company, individual or firm represented in a special or particular manner; (2) the signature of the applicant for registration or some predecessors in his business; (3) an invented word or invented words; (4) a word or words having no direct reference to the character or quality of the goods, and not being, according to its ordinary signification, a geographical name or a surname; (5) any other distinctive mark, but a name, signature or word or words, other than such as fall within the description in the above paras. (1), (2), (3) and (4) shall not, except by order of the Board of Trade or the Court, be deemed a distinctive mark.