The Judgment of the Court was as follows:—
The case against the Appellant is that he has infringed two trade marks belonging to the complainant Manilal Anandji, one, a white deer on a red back-ground and the other composed of figures 4 and 5 on a black ground in the shape of a star on a yellow label. Both the marks were used as trade marks on packets of “biri” sold by the complainant. The learned Chief Presidency Magistrate has found that in respect of the figures on the second trade mark the complainant had no monopoly; but as regards the rest of the device of the second trade mark, and as regards the first trade mark, the prosecution case has been established. He has accordingly convicted the Appellant under sec. 482 of the Indian Penal Code, and sentenced him to pay fines of Rs. 500 and of Rs. 200 respectively on the two Courts and in default to undergo rigorous imprisonment for three months and two months respectively. In this Court it is not disputed that the complainant did have the trade marks as alleged by him. The question is as to whether it has been established that the Appellant used false marks in respect of the two trade marks produced by the complainant. I have before me three sets of trade marks which are relevant to the case and I may say at once that in minor details the trade marks of the complainant and the trade marks used by the accused are different; but that in essential matters, that is to say, as regards the general appearance, the prominent portion of the device, the colouring, and so forth, the two sets of trade marks are similar. This view was also taken by the learned Magistrate. The question is, what is the standard of comparison? It has been held that, for the purpose of establishing a case of infringement, it is not necessary to show that there has been the use of a mark in all respects corresponding with that which another person has acquired an exclusive right to use. But if the resemblance is such as not only to show an intention to deceive, but also such as to be likely to make unwary purchasers suppose that they are purchasing the article sold by the party to whom the right to use the trade mark belongs. Wotherspoon v. Currie (1). Therefore the standard of comparison is not that of the expert, but it is that of the lay public, of “the unwary purchasers.” In the present case it would be correct to say that it would be the standard of the ignorant people who use these sorts of “biris” and purchase them from the bazar. In view of these considerations it seems to me that the learned Magistrate correctly held that the trade marks which had been used by the Appellant were false trade marks. In the lower Court the accused also appears to have given “an undertaking to drop the use of both” trade marks.
The next point which has been urged in support of the Appellant, in so far as the prosecution with regard to the stag brand is concerned is that it is barred by limitation under sec. 15 of the Merchandise Marks Act, A. It is pointed out that it is admitted and found that the complainants first came to know of the infringement in September 1927 and he brought the case in March 1929, and it is contended that the case was brought more than a year after the first discovery of the of the offence and that therefore it is barred by limitation. In support of this I am referred to the cases of Ruppell v. Ponnusami Tevan (2). In that case, however, it appears the complainant had not shown that he believed that the use of the alleged counterfeit trade mark had been discontinued after the first discovery in 1893. This case was considered in Akshoy Kumar Chakraburty… v. The King-Emperor…Opposite Party. (3). There it was held that the word “offence” under sec. 15 of the Merchandise Marks Act meant the offence charged. Mr. Chaudhuri for the Crown has pointed out that in the present case the offence charged is an infringement in June 1928, which is well within time. It is contended that in the case of Akshoy Kumar Chakraburty… v. The King-Emperor…Opposite Party. the decision went upon the supposition that it was not found that before the 10th March 1926, which was the date of the offence charged, the prosecution party was aware that the offence had been committed. In the present case however it is established that after the original discovery in September 1927, some action was taken by the complainant and as the result the Appellant gave an undertaking not to make use of the trade marks. It is contended that nevertheless the complainant must have known that the accused was going on infringing the trade marks, because their places of business are only a hundred steps apart. But it does not appear from the evidence that the complainant actually knew that the infringement of the trade mark had been continued. No doubt, there was no written undertaking but there was a verbal undertaking, and this is deposed to by the pleader P.W 4 and the complainant himself. This part of the evidence has not been challenged in cross-examination. There are also two letters written by the complainant's agents to the accused and these were found in the gadi of the accused. They are of June 1928 and they refer expressly to the fact that the accused had given an undertaking. Therefore it comes to this that after the original discovery in September 1927, the accused had given an undertaking to desist from infringing the trade mark any further and that there is nothing to show that before June 1928 the complainant was aware that there had been a fresh infringement. It is contended that nevertheless the limitation must run from the original discovery in September 1927. Mr. Chaudhuri for the Crown has contended that if that be so, then the undertaking would be meaningless and that the complainant would be put upon his watch to see whether there was going to be another infringement within one year of the first discovery; and it might be that, if there was a subsequent infringement after one year of the original discovery, then the second offence would not be punishable at all. This position reduces the argument advanced in behalf of the Appellant to an absurdity. But, as has been pointed out in the case referred to above that the offence mentioned in sec. 15 of the Merchandise Marks Act is the offence charged, and this seems to me to be the only common-sense view that can be taken in the present case. In this case the prosecution is clearly in within time. No other points are pressed in this appeal. The conviction of, and the sentences passed on, the Appellant are confirmed.
The appeal is dismissed.
S.C.M