1. This is a Writ petition filed by an Advocate in public interest. The petitioner prays that respondent Nos. 1 and 2 be restrained from manufacturing, stocking and marketing their product 'kitchen salt' under the trade mark of Dandi with pictorial representation in the background which creates an impression that Mahatma Gandhi, father of the nation, is picking up salt. According to the petitioner, the trade mark Dandi itself gives an impression that it has to do something with the historical march started by the father of the nation Mahatma Gandhi during freedom struggle. This march was by way of protest against Salt laws and the respondents are selling their salt brand named as Dandi with a picture which is similar to the picture of Mahatma Gandhi and his followers taken at the time of Dandi march which has become so famous in the country for number of decades and that it is being taken almost as a sacred documentation of Mahatma Gandhi and freedom struggle. The petitioner contends that the pictorial representation and the name itself of the product sold by respondents 1 and 2 is in contravention of the Emblems and Names (Prevention of Improper Use) Act, 1950.
2. The respondents have filed their counter. One of the counters has been filed by a partner of respondent No. 2 firm. He stated that, the writ petition has been filed at the instance of his business rivals and is not a bona fide attempt of seeing that the provisions of Emblem and Names (Prevention of Improper Use) Act, 1950 are not violated. It is also submitted that such attempts were made by his business rivals by filing a writ petition being W.P. No. 1157 2002 in the name of one Shri Ishvan s/o Shyam Rao in the High Court of Bombay, Nagpur Bench which was dismissed in limini by the Bombay High Court. He further stated that, the grounds taken in the writ petition filed before the Bombay High Court were identical to the grounds taken in the present writ petition. The order passed by the Bombay High Court was confirmed by the Supreme Court. Copies of the judgments of the Bombay High Court and Hon'ble Supreme Court in SLP (Civil) No. 9148 of 2002 have been filed before this Court. It is contended that, since the matter has already been decided by a High Court at Bombay and the SLP has been dismissed by the Supreme Court therefore this matter cannot be re-agitated again. A plea of res judicata has also been taken. It was also contended that a notice had been given which was unlawful therefore the respondent did not reply the notice.
3. In the counter filed by respondent No. 1, it is submitted that they are not manufacturing any salt in the name of Dandi.
4. Before coming to the legal position, we would like to deal with the objection raised by respondent No. 2 in the first instance that the matter is res judicata as the matter has already been decided by the High Court of Bombay and an appeal has been dismissed by the Supreme Court. We have gone through the orders passed by the Bombay High Court and also the Supreme Court in SLP. The High Court of Bombay passed the following order on 12-4-2002:
"Heard.
The contentions of the petitioner are misplaced. We do not find any merits in the matter. The petition is dismissed."
Thereafter the matter was taken to the Supreme Court in SLP (Civil) No. 9148 of 2002. The Supreme Court passed the following order:
"The Special leave petition is dismissed."
Neither the High Court nor the Supreme Court considered the issues raised in the writ petition. Therefore, there is no question of the matter having become res judicata. The Bombay High Court gave no reasons for dismissing the Writ petition, the Supreme Court also dismissed the SLP and did not grant leave to file appeal, without any reasons. Therefore, we do not think that, because the matter was raised before the Bombay High Court this Court would not be entitled to hear the case on merits. The objection raised by the other side cannot be accepted and the contention in this regard is rejected.
5. Now, coming to the merits of the case, let us have a look of the Emblems and Names (Prevention of Improper Use) Act, 1950. This Act was enacted to prevent the improper use of certain emblems and names for professional and commercial purposes. Section 3 lays down:
"3. Prohibition of improper use of certain emblems and names :--Notwithstanding anything contained in any law for the time being in force, no person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use, or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade-mark or design, any name or emblem specified in the Schedule or any colourable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorized in this behalf by the Central Government."
Under this provision no person except under conditions prescribed by the Central Government can use the names or emblems specified in the Schedule of the Act and 9A of the schedule lays down that, the name or pictorial representation of Chatrapathi Shivaji Maharaj or Mahatma Gandhi or Pandit Jawaharlal Nehru, Shrimati Indira Gandhi, or the Prime Minister of India except the pictorial use thereof on calendars where only the name of the manufacturers and printers of the calendars are given and the calendars are not used for advertising goods. So, if one reads section 3 with 9a of the schedule it becomes clear that the name or pictorial representation of father of the nation Mahatma Gandhi cannot be used for any commercial purpose. Under Section 4 of the Act there is prohibition of registration of certain companies. Section 4 lays down:
"4. Prohibition of registration of certain companies etc. :--(1) Notwithstanding anything contained in any law for the time being in force, no competent authority shall--
(2) If any question arises before a competent authority whether any emblem is an emblem specified in the Schedule or a colourable imitation thereof, the competent authority may refer the question to the Central Government, and the decision of the Central Government thereon shall be final."
There are also penalties provided under the Act.
6. Now the only question which has to be answered is whether the name Dandi and the pictorial representation on the packets of salt contravene Section 3 read with 9A of the Schedule, or not. We have seen the copies of the emblem on the packet along with the name, which is reproduced herein below:
We have no doubt in our mind that it creates an impression that this salt has something to do with Mahatma Gandhi. The pictorial exposition is similar to the picture of Mahatma Gandhi taken at the time famous Dandi march. Dandi in itself is as much associated with Mahatma Gandhi as Ahimsa or as Sabarmathi Ashram. Therefore, in our view the respondents 1 and 2 are in violation of Section 3 of the Act.
7. The learned Counsel for the petitioner has, however, drawn our attention to a judgment of Supreme Court reported in Cadila Health Care Ltd. v. Cadila Pharmaceutical Ltd., . The questions raised in this judgment were not questions relating to interpretation of the Emblems and Names (Prevention of Improper Use) Act but were related to Trade and Merchandise Marks Act (43 of 1958). The Supreme Court in this case considered the whole law relating to trade marks and finally in para-35 laid down the following principles:
"Broadly stated in an action for passing off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors to be considered:
(a) The nature of the marks i.e., whether the marks are word marks or label marks or composite marks i.e., both words and label works.
(b) The degree of resembleness between the marks, phonetically similar and hence similar in idea.
(c) The nature of the goods in respect of which they are used as trade marks.
(d) The similarity in the nature, character and performance of the goods of the rival traders.
(e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.
(f) The mode of purchasing the goods or placing orders for the goods and
(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.
Weightage to be given to each of the aforesaid factors depends upon facts of each case and the same weightage cannot be given to each factor in every case."
By going through these principles and the judgment, one comes to the only conclusion that, one has not to see the dissimilarities but the similarities in such cases. More the similarities more the chances of deception and causing of confusion.
8. The respondents are selling salt, Dandi march was associated with an agitation relating to salt. It is well known that in 1930 Gandhiji accompanied by residents of Sabarmathi Ashram and thousands of his followers set out for Dandi which is a place south to the Sabarmathi Ashram at Ahmedabad. He publicly flouted the Salt laws and declared that he would not return to Sabarmathi Ashram until the Salt laws had been repealed. Dandi was an unknown village of now the Gujarat State but it became well known because of Mahatma Gandhi's Dandi march. So, salt is similar, Dandi is similar and the photograph, which became so famous that it can be recognized by almost every citizen of India, is similar. All these similarities are there in the present case.
9. This country has already done much injustice to the soul of Mahatma Gandhi by flouting the principles for which he lived and died. Now we cannot also permit third rate commercial interests to be protected and enhanced in the name of father of the nation.
10. In these circumstances, we allow this writ petition and direct the authorities concerned under the Emblems and Names (Prevention of Improper Use) Act, 1950 to take steps in accordance with the Act to ensure that Mahatma Gandhi's picture or the name Dandi is not used for any commercial purpose.
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