E S OLPADVOLLA Vs. JAMES WRIGHT

JUDGEMENT

(1.) In this case the petitioner who is the proprietor of the well-known firm of Soda-water manufacturers called Byron & Co. has been convicted under Secs.483 and 486, I.P.C., and 6 and 7, Merchandise Marks Act. The short facts involved in this case are as follows : It appears that the complainant James Wright who is connected with a firm called Rose and Thistle has introduced into the market soda-water supplied in bottles with a "frosted appearance bearing the letters "R and T Ltd." at the bottom of the bottles. These bottles have a special paper label bearing the words "Rose and Thistle Ltd. Frosted Soda." These bottles have a capsule called crown cork. It appears that in Calcutta there is a common practice for various kinds of bottles to be used by different mineral water manufacturing firms indiscriminately, that is to say, customers send in indiscriminately, Byron's bottles to Rose and Thistle in order that the bottles may be filled with soda-water or other waters and Rose and Thistle bottles to Messrs. Byron & Co., for a like purpose. The complainant says that the accused in this case has no right whatsoever to fill his bottles. The accused has stated before the Magistrate that he has no intention of filling the complainant's bottles but hat inasmuch as these bottles are brought in by coolies and sent to the manufacturers in order that they may be filled in it is not possible for him to prevent what has happened in this case. The Magistrate observes that the complainant's manager admits that he has given orders in their factory that outsider's bottles will not be accepted; but he finds it difficult to get the order carried out owing to the fact that the men cannot read English and that the bottles are brought in indiscriminately. In these circumstances the complainant complained before the Magistrate in respect of the user of his bottles by Messrs. Byron & Co.

(2.) The Magistrate has found that the design of the bottle of the complainant described as a bottle with a "frosted appearance" has been registered under the Patents and Designs Act, that the label is also registered under the said Act, but he states that the bottle itself is part of the complainant's trade-mark and he has accordingly gone into the case on that footing and has found that the accused has been guilty of counterfeiting the complainant's trade-mark and further that he has been selling goods with a mark i.e., with counterfeit trade-mark and has thereby rendered" himself punishable under Secs.483 and 486, I.P.C.

(3.) It is not necessary for us to refer to the sections in the Merchandise Marks Act because those sections follow closely the provisions of the Indian Penal Code in that behalf.