EMPREOR Vs. BAKAULLAH MALLIK

JUDGEMENT

(1.) The appellants in the present case have been convicted on charges under Section 482 and Section 486 of the Indian Penal Code, as amended by the Indian Merchandise Marks Act, 1889, of using a false trade-mark, and selling goods marked with a counterfeit trade-mark, and under Section 6 of the Merchandise Marks Act of applying a false trade description to goods, and they are now appealing against These convictions. The main facts in the case are simple and are undisputed.

(2.) Since December, 1900 the opposite party have been selling fish-hooks, which they have imported from Europe, in packets bearing labels on which appears a design of two fish crossed, with their heads and tails bent up. These fish-hooks have been generally known in Calcutta as "mash marka" (fish mark) and have commanded a large sale. The boxes, labels and designs have been made exhibits, but we need only notice the design of two fishes which for present purposes may be conveniently referred to as mark A. During the season of 1903 the appellants sold fish-hooks in similar boxes, bearing similar labels, and a design of one fish with his head and tail turned up. These boxes, labels and designs have also been made exhibits but again we need only notice the design of one fish, which we will refer to as mark E.

(3.) No point has been raised before us on the similarity of the boxes and labels, as it is admitted that their shape and appearance are what are usual in the trade, and the inscription on the label bearing mark B is different from that on the label bearing mark A; the name of the maker in particular being truly given, But it is alleged that mark E is a fraudulent imitation of mark A, and that it is devised to enable the appellants to sell their fish-hooks as "mash marka."