Sinha, J.:— Petitioner no. 1 Nehal Chand has been convicted under Section 482 of the Penal Code, and has been sentenced to pay a fine of Rs. 1,000, in default, to undergo rigorous imprisonment for three months. The other two petitioners, Parmanand Verma and Ramautar Sah, have been convicted under section 482 read with Section 109 of the Penal Code, and each one of them has been sentenced to pay a fine of Rs. 250, in default, to undergo rigorous imprisonment for one month.

P.W 18, the complainant in this case is the manager of the Muzaffarpur Branch of Messrs Moolji Bhai Mathur Bhai, manufacturers and sellers of biris. On or about the 25th of February, 1950, the complainant noticed a large consignment of biris at the Muzaffarpur Railway Station, and discovered that these biris were wrapped up with labels, which, according to him, were colourable and obvious imitation of the label used for biris maunfactured by his firm. It was also discovered that the petitioner Parmanand, who, at one time, happened to be in the service of the complainant's firm, was in the service of Ramautar as his agent.

A large number of persons, including the petitioners, were put on trial, but they have been acquitted by the learned Magistrate. Parmanand appears to be the selling agent working under Ramautar, who is alleged to be the stockist at Muzaffarpur of the biris manufactured by Nehal Chand.

The defence was that the labels used by Nehal Chand were not false trade marks within the meaning of section 480 of the Penal Code, which defines marking and using a false trade mark. There were other defences made at the trial with which this Court is not concerned as they were not pressed before this Court or even before the Court below.

The label used by the firm of Messrs Moolji Bhai Mathur Bhai is marked Exhibit I and that used by Nehal Chand is marked Exhibit III. Section 482 of the Penal Code runs as follows:—

“Whoever uses any false trade mark or any false property mark shall, unless he proves that he acted without intent to defraud, be punished with imprispnment of either description for a term which may extend to one year, or with fine, or with both.”

We are not concerned with marking or using a false property mark. Using of false trade mark is defined in section 480 of the Code which runs as follows:—

“Whoever marks any goods or any case, package or other receptacle containing goods, or uses any case, package or other receptacle with any mark thereon, in a manner reasonably calculated to cause it to be believed that the goods so marked, or any goods contained in any such receptacle so marked, have a connection in the course of trade with a person with whom they have not any such connection, is said to use a false trade mark.”

In this case there is no question that the goods were marked or that any case, package, or other receptacle meant to contain goods manufactured by other persons had been used. Here we are concerned with the marking of case or package. According to the prosecution case, the petitioner Nehal Chand had marked the Case or package of biris manufactured by him in a manner which might reasonably be calculated to deceive the purchasers into believing that the biris they were buying were the biris manufactured by the complainant's firm. The question to be decided in this case is, firstly, as to whether Nehal Chand marked the case or package of his biris in a manner reasonably calculated to deceive the buyers into believing that the 6ms contained in those cases or packages were the biris manufactured by the complainant's firm and that the other petitioners, Parmanand and Ramautar, abetted Nehal Chand in so doing; and, secondly, whether these petitioners have proved that they acted without any intent to defraud.

Both these questions are questions of fact, and on both these points we have got the findings of the final Court of fact against the petitioners. We have, however, heard the parties at some length as it was contended that the Court below has misapplied the law in arriving at its decision. The learned Magistrate has, in a clear and lucid judgment, mentioned the points of difference and the points of similarity between the two labels Exhibits I and III, and on those facts he has found that Exhibit III constituted a colourable imitation of Exhibit I. He has held.

“No doubt the two labels are not identical and different in minor details but in essential matters, i.e, to say as regards the general appearance, the prominent portion of the device and the colouring, the two sets of trade marks are similar. In other words, she resemblance is too close to be noticed by illiterate or unwary customers. Ordinarily Biri smokers are drawn from such class of society where it cannot be expected that they will be able to distinguish between the two.”

The learned Judge accepted the findings of the first Court in regard to the differences and the similarities in the two labels, and he also was of the opinion that the label used by the petitioner Nehal Chand was a colourable imitation of the label used by the complainant's firm. During the pendency of the appeal in the Court below, Nehal Chand has got his trade mark registered under the Trade Marks Act of 1940, and it was contended on behalf of the petitioners that, in view of the registration of the trade mark of Nehal Chand, it cannot be held that his trade mark represented by Exhibit III could be regarded as a colourable imitation of Exhibit I. The learned Judge rightly pointed out that the mere fact that the trade mark in question was registered after the offence had been committed, Nehal Chand was not justified in using the offending label Exhibit III before its registration. Upon the question of bona fides of Nehal Chand, the Court below held that it was with a view to capture the market that the present label Exhibit III was used by Nehal Chand, and, therefore, there could be no question of any bona fide intention in this case.

I do not propose to mention all the differences and all the similarities between the two labels because they have been already pointed out by the learned Magistrate, and his finding has been affirmed by the Court below.

The question in all such cases is whether the alleged false trade mark was likely to deceive the buyers in thinking that they were buying the goods of the actual manufacturer though in fact they were buying goods of some other manufacturer. The test in such cases is not that the trade mark in question is an exact or substantial copy of the trade mark used by the complainant, but whether the imitation of the trade mark of the complainant has been done in a manner likely to cause the trade mark in question to be mistaken for the trade mark of the complainant. “What degree of resemblance is necessary, is, from the nature of things, a matter incapable of definition a priori. All that courts of justice can do, is to say that no trader can adopt a trade mark so resembling that of a rival as that ordinary purchasers purchasing with ordinary caution are likely to be misled.” [Per Cranworth, L.C, in Seixo v. Provezende.] It would be sufficient for the complainant to show that the trade mark employed by the accused bears such close resemblance to the mark employed by him as to be reasonably calculated to deceive the public. In fact, it need not be an exact copy of the other, but the similarity should be such as a Court would hold, in the circumstances, to be calculated to deceive. It is the totality of impression which is likely to be left in the mind of a probable purchaser that has to be (considered. The differences on non-essential points are not important; what is important is the main idea conveyed to the mind by the two trade marks. If a buyer is in the habit of buying a particular article manufactured by a particular firm and if he asks for the same and he is offered an article manufactured by another firm, whether he would be able to detect the differences in the labels of the goods of the two manufacturers and be able to say that it was not the article he wanted. If the marking on the goods or on the package, in which the goods are marketed, are similar in design, shape, size and colour scheme with the markings of the complainant, it must be held that, although there may be differences in details between the two markings, the markings used by the accused were calculated to mislead the buyers. At the time a purchaser is buying some goods, he has not got the two goods placed side by side and he is not in a position to compare the two and then make up his mind whether to buy the one or the other, and the Court must have in view, while deciding, as to whether or not the trade mark complained of is likely to deceive the buyers or the class of buyers which generally buys such goods. “If a purchaser, looking at the article offered to him, would naturally be led, from the mark impressed on it, to suppose it to be the production of the rival manufacturer, and would purchase it in that belief, the court considers the use of such a mark to be fraudulent.” [(1866) L.R 1 Ch. 192.] As Lord Halsbury said in Schweppes, Ld. v. Gibbens, “The whole question in these cases is whether the thing taken in its entirety, looking at the whole thing—is such, that in the ordinary course of things a person with reasonable apprehension and proper eyesight would be deceived.” It was pointed out in Bryant and May, Ld. v. United Match Industries, Ld. that “one must regard to the net impression, the main idea left on the mind by a casual look”.

Mr. A.N Sahay for the petitioners contended that the test laid down in some of the earlier cases and adopted by Khaja Mohammad Noor, J. in Giridhari Lal Marwari v. The King Emperor to the effect that the Court must come to its own conclusion after having placed itself in the position of an “unwary customer” should not be the test. The word unwary when used with reference to purchasers, only means that the class of purchasers which generally buys the goods in question is such that would not care to exercise extra caution which some other person might, exercise in selecting the goods he buys, and, I think, Khaja Mohammad Noor, J., used that word in that sense. In that case also his Lordship was dealing with two contending trade marks on labels of biris manufactured by two firms, and he said, “No doubt, if the two labels are placed side by side an observer will mark the difference, but for a an who has not carefully noticed the features too closely it will be difficult to distinguish the one from the other.” In my opinion, he only meant to suggest that the class of persons which buys biris is not expected to exercise meticulous care in distinguishing the one from the other. Such class of persons will naturally be guided by the impression left on their mind from a casual look at the label which they were accustomed to see when buying goods under that particular label. Mr. Sahay placed great reliance upon the case of The Dunlop Pneumatic Tyre Company, Limited v. The Dunlop Motor Company. There, the case was between two companies, the one styled as the Dunlop Motor Company, the principle business of which firm was of selling and repairing motors, motor cycles and the parts thereof, and the other company known as the Dunlop Pneumatic Tyre Company, which firm dealt in tyres, pumps, and other adjuncts of motors and other vehicles. It was contended in that case that the Dunlop Motor Company was not entitled to use the word ‘Dunlop’ in the name of their company because the other manufacturers (The Dunlop Pneumatic Tyre Company) had used that word in the name of their company. It was held in that case that, in the first instance, the main objects of the two businesses were different and that the Dunlop Pneumatic Tyre Company had no exclusive right in connection with the sale of their articles to the use of the name ‘Dunlop’; and, secondly, that an ordinary business person could not be misled, which fact was admitted. It was, however, alleged that the ‘unwary’ would be so misled, and in answer to that contention, it was said that there might be many ‘unwary’ people in this world, but “a man who employs his own name in carrying on his business has the right to regard the people whom, he may attract as being capable of exercising and being in the habit of exercising thought;……………. Any one who took the trouble to think about the matter would see that the respondents' company was a motor company and the complainers' a tyre company’………… I do not think that the average citizen of Kilmarnock would be deceived, and I cannot speculate upon the degree of unwariness that would induce the confusion necessary to support the appellants' claim.” In my opinion, as has been said, it is not safe to rely upon the decisions of another country where the conditions of life are so different from the other. An ‘average citizen of Kilmarnock’ may not represent the average citizen of our country, and the learned Magistrate has pointedly said that

“Ordinarily Biri smokers are drawn from such class of society where it cannot be expected that they will be able to distinguish between the two.”

The other case on which some emphasis was laid is the case of A.M Malumiar and Company v. Finlay Fleming and Company. The facts of that case were entirely different and the learned Judge in that case said, “It has not, in fact, been suggested that there is anything in the appearance of the two marks to lead to confusion”. If there were no such markings in appearance as to lead to confusion, there could be no question of anybody being liable to be deceived. In that case, the following passage from 27 Halsbury's Laws of England 766, which had been adopted by Sir Charles Fox in Byramjee Cowasjee v. Vera Somabhai, was quoted with approval:—

“The proper test is whether the ‘get up’ of the defendant's goods is likely to deceive a purchaser who is acquainted with the plaintiff's ‘get up’ but trusts to his memory. It is to be assumed that the purchaser will look fairly at the goods without distinguishing features being concealed and the Court must also have regard to the class of purchaser by whom the goods would normally be bought.”

It was finally held in that case that the trademark in question was not reasonably calculated to cause it to be believed that the goods of the accused were in fact the merchandise of the complainant. In my opinion, that case offers no guidance. The principle, however, appears to be settled by the latest decision of the Privy Council in Thomas Bear and Sons (India), Ltd. v. Prayag Narain. It was laid down in that case that “the test of comparison of the marks side by side is not a sound one, since a purchaser will seldom have the two marks actually before him “when he makes his purchase; and marks with many differences may yet have an element of similarity which will cause deception, more especially if the goods are in practice asked for by a name which denotes the mark or the device on it……………………. Their Lordships however are not to be understood as saying that the differences in get up are immaterial; for they must inevitably form an element in considering the question of probability of deception by the use of the mark”. In Chhotu Sao v. Bansi Lal, which was an action for passing-off, it was held that the questions whether a suitor has obtained a right of property in the trade mark and whether the use of the trade mark by the defendant on his goods will amount to false representation were both questions of fact and the test of comparison by putting the two contending trade marks side by side was not a sound one. I do not think that it is profitable to consider any other case on this point.

Upon a consideration of the facts and the circumstances of this case and the principle of law applicable to such cases, I am of the opinion that, in spite of the differences in the two contending labels, the label Exhibit III is likely to be mistaken for the label of the complainant Exhibit I.

There is another aspect of the matter. Evidence was led to show that the biris manufactured by the complainant's firm, had obtained reputation of being sold by the name of ‘Golden Biri’ or ‘Sonahla Biri’. After having a look at the two sets of labels, I am of the opinion that because of the general get-up, the size and the colour scheme of the two sets of labels, the biris manufactured by Nehal Chand could be easily mistaken to be the ‘Golden Biri’ or ‘Sonahla Biri’ manufactured by the complainant's firm. This is an additional ground to hold that the use of the trade mark in question by Nehal Chand is reasonably calculated to mislead the buyers.

It appears that before the introduction of the trade mark in question by the petitioner Nehal Chand, he had another trade mark which was of green colour; and after the introduction of the present label, he had much greater sale of the biris manufactured by him. There is no doubt, therefore, that Nehal Chand had the requisite intention of defrauding the buyers, and there is no circumstance, or evidence, or any other material from which it could be shown that Nehal Chand has proved that he was acting without any such intent.

It was contended further that after Nehal Chand had been able to get his trade mark in question registered under the Trade Marks Act, 1940, it could not be said that he had used that trade mark in a manner reasonably calculated to mislead people. In my opinion, the fact that trade mark has been registered is no answer to the offence of using false trade mark as defined in section 480 of the Penal Code. Even in cases where a trade mark has been registered under the Trade Marks Act, 1940, the Court is not bound by any opinion, express or implied, of the officer empowered to register the trade mark the Court must come to its own conclusions as to whether or not the trade mark in question was likely to cause deception. In my opinion, there is no merit in this contention.

I would, accordingly, affirm the conviction of Nehal Chand under section 482, of the Penal Code for using a false trade mark.

So far as the other two petitioners, Parmanand and Ramautar, are concerned, there does not appear to be any material on the record from which it could be shown that they were guilty of an offence of abetment under section 109 read with Section 482 of the Penal Code. The offence of Nehal Chand was that he had marked the case or covering of his biris in a manner capable of deceiving people into believing that the biris manufactured by him were the biris manufactured by the complainant's firm. Section 109 of the Penal Code says that if anybody abets any offence in consequence of which the offence is committed, the abettor must be punished for the offence which he abetted. Explanation to section 109 reads as follows:—

“An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.”

In this case, there is no material on record to show that these two petitioners either instigated or were parties to any conspiracy or that they aided the marking of the cover of the biris with the trade mark in question. Evidence was led to the effect that one of them was a salesman and the other was a stockist of the biris of Nehal Chand. In my opinion, these allegations are not at all relevant for a finding that these two petitioners were the abettors of Nehal Chand in the offence of using a false trade mark. Mr. S.N Sahay for the opposite party contended that as these persons used the case or package with the trade mark in question, the one by being the selling agent and the other by being the stockist, they have committed the offence of using a false trade mark as defined in section 480 of the Penal Code. Section 480 speaks of (1) marking any goods, (2) marking any case, package or any other receptacle containing goods and (3) using any case, package or other receptacle with any mark thereon in a manner reasonably calculated to cause deception. In my opinion, the first two relate to the marking of goods or the receptacle containing goods with a trade mark which might resemble the trade mark of another manufacturer, and the third only speaks of using the case, package or any other receptacle with a mark on it. It is clear that so far as the last category of the offence is concerned, there is no question of putting any mark on the goods or on the case or package; here a marked case or package or receptacle is used in a manner, which may lead people to believe that the goods contained in that case or package or receptacle were the goods of the manufacturer whose trade mark is borne on that case, package or receptacle. The meaning can be well illustrated with reference to some of the spurious drugs which are sold in the market in cases bearing the trade mark of the original manufacturer. Mr. S.N Sahay contended that the two petitioners had committed the offence of the third category mentioned above, but I do not agree. In the present case, it cannot be said that the cases, packages or receptacles, having mark thereon, were used by the two petitioners in a manner calculated to cause people to believe that the goods so contained in such receptacle so marked were the goods manufactured by the manufacturer whose trade mark those cases, packages or receptacles bore. It is nobody's case that these two petitioners tried to pass-off biris manufactured by other persons as the biris manufactured by the complainant's firm by using cases, packages or other receptacles marked with the label of the complainant. In my opinion, it cannot be held that these two petitioners either committed the offence themselves or abetted the commission of the offence under section 480 of the Penal Code by mere selling or stocking the biris in question. In that view of the matter, in my opinion, their conviction under section 482/109 of the Penal Code cannot possibly be upheld. They are, therefore, entitled to be acquitted. I would, therefore, set aside their conviction and sentence.

The only question now remains is in regard to the sentence upon Nehal Chand. It has been brought to our notice that, when the complaint was filed, a very large stock of biris manufactured by Nehal Chand, found in various shops, was attached and, under the orders of the Court, they have been forfeited to the State. Considering that fact, in my opinion, the law will be fully vindicated if the fine on Nehal Chand is reduced to a sum of Rs. 500 only, and I direct accordingly. In default of payment of fine, he is directed to suffer rigorous imprisonment for two months. In the event of the fine being realised, a sum of Rs. 250 will be paid to the complainant's firm.

In the result, the application of Nehal Chand is dismissed with the modification in the amount of fine, as already indicated, and the application of the other two petitioners, Parmanand and Ramautar, is allowed, their conviction and sentence set aside and the rule is made absolute.

Das, J.:— I agree.

K.D

Order accordingly.