ROSHAN SINGH Vs. EMPEROR THROUGH SAMPURAN SINGH TANDON

JUDGEMENT

(1.) This is an application in revision against an order of the Court below. The complainant, Messrs the Tata Oil Mills Company Limited of Bombay, made this complaint through Mr. Tandon, who is the Manager, Tomco Sales Department, Delhi, against the applicant Eoshan Singh, who is the proprietor of Agra Soap and Chemical Works, under Ss.482, 483 and 486, Indian Penal Code. The complaint states that the complainant firm is well known at Bombay and carries on business on a large scale in various kinds of soap; that it has got its trade marks which have been duly registered and one of them is "501" which it has been using on a soap, in the market known by the name of "501"; that the applicant (Roshan Singh) dishonestly with a view to defraud the public has manufactured a soap similar in shape, size, colour, etc., and is selling it underthename "301" : that the general get-up of the soap is designed to deceive the public and to cause loss to the complainant ; that the complainant was informed of this fact in the month of July 1938 and thereupon the applicant was served with a notice on behalf of the firm to desist himself from copying the trade mark of the complainant firm but the applicant paid no heed to it. On these allegations it was prayed that action may be taken against the applicant under the sections mentioned above and that the goods, moulds, etc., found in possession of the accused may be taken possession of. The applicant pleaded not guilty and stated that his soap had been in the market for several years past; that there was no resemblance between the soap manufactured by the applicant and soap "sol" manufactured by the complainant; that no offence in law was committed by the applicant and that the complaint was barred by limitation.

(2.) The case was tried by a Magistrate of the second class who found the applicant guilty under Secs.482 and 486, Indian Penal Code and convicted and sentenced him to a fine under each count. On appeal the appellate Court affirmed the conviction but reduced the sentence to a fine of Rs. 200 under Section 482 or three months rigorous imprisonment in default and Rs. 25 under Section 486 or three months rigorous imprisonment in default. The applicant went in revision to the Sessions Judge who summarily rejected the application. The applicant has now come up in revision to this Court. It is not disputed that the complainant's soap bears a registered trade mark. The applicant, on the other hand, has no registered trade mark. The Court below have come to the conclusion that the applicant's soap is a colourable imitation of the complainant's soap and the similarity is reasonably calculated to deceive the intending purchasers.

(3.) Ordinarily, it is not the practice of this Court to disturb findings of fact in revision, but in the present case the finding of fact depends on a correct interpretation of the law. It is therefore necessary to examine the case on merits in some detail. In the declaration form registered by the complainant company in Bombay the description of the trade mark is given as follows : The cube soap has six sides. On the first, corresponding and reverse sides of the soap there is imprinted an circle within which there is rhombus and T.O.M.C.O. being the first letters of the words which form the name of the company. Over the second corresponding and reverse sides of the cube soap, there appears an circle imprinted therein and this forms and constitutes the number or otherwise the brand of soap referred to above manufactured by the company. Upon the third corresponding and reverse sides of the soap there are words "free from animal fat" imprinted in three lines one beneath the other. The trade mark, number and stamp herein described are particularly used in respect of this brand of soap.