LOKE NATH SEN Vs. ASWINI KUMAR DEY

JUDGEMENT

(1.) The petitioner in this case has been convicted under Secs.482 and 486, I.P.C. for using a false trade mark and selling goods marked with a counterfeit trade mark. The trying Magistrate fined him Ha. 100 under each section, in default sentenced him to simple imprisonment for three months. On appeal, the learned Sessions Judge maintained the fine under Section 482 only, passing no separate sentence under the other section.

(2.) Both parties are dealers in and manufacturers of umbrellas at Mymensingh. The complainant's business is of over 25 years standing, while the accused is said to have been carrying on his business for ten years or so. The prosecution case in that the complainant manufactures three brands of umbrellas, which are all known in the market as "Aswini Chhati" after the name of the complainant Aswini Kumar De. One of these brands bears a design printed on the inside, being Ex. 1 in the case, and it is this which the accused is charged with having infringed. The design consists of the picture of a swan holding a closed umbrella between its beaks in the centre, with the name "Aswini Kumar De" in prominent type stretching over it like an arch from end to end, and the figure 8 A 4 (the letter "A" overlapping the digits 8 and 4) on the top of it. Below in smaller type are the words-"Mymensingh Burra Bazar", while in the space between, in slightly smaller type, are the words "Trade Mark" and "Registry No. 964" in two lines, intercepted in the-middle by the figure of the swan, the first word of each line on the left. The other two brands do not bear any such design, but simply the name "Aawini Kumar" and "Aswini Kumar De" respectively. The complainant claims the exclusive right to use these names also as a trade mark, but as already stated, the charge is in respect of the design Ex. 1 only. The false trade mark which the petitioner is alleged to have used in colourable imitation of this design is on certain brands of umbrellas of his manufacture, of which Exs, 2 to 4 are samples. This offending mark also contains the figure of a swan, but holding an open umbrella in its mouth, with the name "Sree Aswini Kumar Das" (and not De) similarly arching over it, surmounted by the figure "84" (but without the letter "A" between 8 and 4, as. in Ex. 1). Below are two lines, "proprietor Sree Loke Nath Sen" and "Mymensingh Chhota Bazar", and there is also the word "Trade" on one aide of the swan and the word "Mark" on the other in one line.

(3.) Apart from the design, Ex. 1, the complainant's umbrella also bears to the right of the same an oval impression containing within it the words "Aawini Kumar De Marka" and the figure "964", together with a warning to purchasers to note the number at the time of purchase. The figure 964, it may be explained, is the number under which it appears the complainant bad a declaration of ownership registered on 23 August 1926, under the Registration Act in respect of the device in Ex. 1. The offending brand of the accused's manufacture, Ex. 2, also reproduces a similar oval design, only substituting the surname "Das" for "De" and the figure "965" for "964". No significance is attributable at all to the figure "965" : the accused claimed at one stage that this was the number under which he had also "registered" his mark, but failed to substantiate this as a fact.