1. Seth Brothers carry on business of perfumes at Delhi. They had prepared a scent of their own with distinct aroma of its own. They sell it in 25 gm., 100 gm. and 500 gm. phials. The labels on these phials have also distinctive ornamental designs. Its Trade Mark was registered under No. 215930B and its copyright was, “SCHIMMER'S mala”, which was registered at No. A-806A/68. The aforementioned Trade Mark was registered on 5th March, 1969. This phial with label of ‘SCHIMMER'S Mala’ is being sold in the market throughout India. This scent is known in the market as ‘Mala’ and is demanded by the customers with that name. It is very popular in the market and remains in demand. A number of Firms are trying to put spurious scents in the market under the same caption and cheat the people. They are also causing loss in this way to Seth Brothers.
2. On 11th April, 1969 Nand Kishore, Salesman and representative of Seth Brothers lodged report at police station Kotwali, Deoria, town for taking appropriate action in this connection against perfume dealers Sohan Singh, Dinesh and Kedar Prasad of Deoria town. After this report was lodged a search of these shops was taken. The authorities of police station Deoria recovered from the shop of Kedar Prasad 10 phials of Mala Scent from the shop of Dinesh 5 dozen phials of Mala Scent were recovered. The labels on those phials were printed, “Kangaroo New Mala” and there was also written the name of the manufacturer as “BHARAT DHUJ SHYAM BIHARI KANNAUJ” with the registered Trade Mark ‘Kangaroo 240714’. On the carton there was picture of ‘Kangaroo’ along with its Trade Mark and also of a woman. ‘Mala’ was written in the middle of it. Ten phials were also recovered from the shop of Sohan Singh. On the labels of those phials were noted ‘Kangaroo New Mala’ and the name of the manufacturer was noted as ‘BHARAT DHUJ SHYAM BIHARI KANNAUJ’ with the Trade Mark of Kangaroo 240714. After the aforementioned recoveries the case was registered against the aforementioned dealers. The case was investigated by Dost Mohammad Ansari who had himself made the recoveries. On 28-8-1969 Sri Ansari Searched the Firm of respondent Kishori Lal Agnihotri at Kannauj and from his shop he recovered a carton with ‘Kangaroo’ Trade Mark affixed to it. He recovered five labels of ‘New Mala’. After completing the investigation he submitted the charge sheet against the respondent and others.
3. The respondent denied having infringed the Trade Mark ‘Mala’ of Seth Brothers. He claimed that he sold his own Kangaroo New Mala Scent.
4. The learned Magistrate framed the charges under S. 79, Trade and Merchandise Marks Act, 1958 against Kedar Prasad Gupta, Dinesh and Sohan Singh. He framed the charges under Ss. 78(a), 78(b) and 79 of the Trade and Merchandise Marks Act, 1958 against the respondent.
5. At the trial the prosecution examined Krishna Narain Tandon Advocate P.W 1, who is Standing Counsel for Seth Brothers. He got the fact of Trade Mark of ‘SCHIMMER'S mala’ registered in the name of Seth Brothers published in the News papers. P.W 2 Dost Mohammad Ansari is the Investigating Officer and P.W 3 Nand Kishor is the representative of Seth Brothers. No other witness was examined. Respondent or any other accused did not examine any witness in their defence.
6. The learned Judicial Magistrate, who tried the case convicted Kishori Lal Agnihotri respondent under Ss. 78(a), 78(b) and 79 of the Trade and Merchandise Marks Act, 1958 and sentenced him to imprisonment for three months and fine of Rs. 1000/-. He also convicted Kedar Prasad Gupta under S. 79 of the said Act.
7. Respondent and Kedar Prasad Gupta went in appeal before the learned Sessions Judge, Deoria. He allowed their appeal, set aside their conviction and acquitted them. The State has now filed this appeal against the acquittal of Kishori Lal Agnihotri alone and has not filed any appear against the acquittal of Kedar Prasad Gupta. The material exhibits were destroyed. The trial Court was, therefore, directed to reconstitute the material exhibits. The trial Court has reconstituted those scent phials and has sent then to this Court. Respondent was examined before this Court on oath. He admitted that Kangaroo New Mala scents which were recovered from the shop of the accused were manufactured by his Firm. Bharat Dhuj Shyam Bihari, Kannauj’. He admitted that the trial Court which has sent the phials with the label ‘Kangaroo New Mala’ was manufactured by his Firm ‘Bharat Dhuj Shyam Bihari, Kannauj’. The phial on Which ‘SCHIMMER'S Mala’ is written was not manufactured by his firm. He also admitted that the phial was contained in the same packing in which it was before this Court. After this admission the only question that remains to be examined is whether the Trade Mark of the scent in question of Seth Brothers has been infringed or not and the offences under Ss. 78(a), 78(b) and 79 of the Trade and Merchandise Marks Act, 1958 were committed.
8. There is no doubt or dispute about the fact that the Trade Mark of ‘SCHIMMER'S mala’ was registered. The letters ‘mala’ are not in bold letters. The word is in black rectangle in white letters. The word ‘SCHIMMER's is above it and Regd. T.M No. 215930’ is below it.
9. Before discussing the question of fact that whether the Trade Mark in question has been infringed or not, I would like to notice the legal position. It was observed by the Supreme Court in “Corn Products Refining Co. v. Shangrila Food Products Ltd , (AIR 1960 SC 142) as follows:—
“It seems necessary that the reputation should attach to the trade mark; it should appear that the public associated that trade mark with certain goods. The reputation with which we are concerned in the present case is the reputation of the trade mark and not that of the maker of the goods bearing that trade mark. A trade mark may acquire a reputation in connection with the goods in respect of which it is used though a buyer may not know who the manufacturer of the goods is.”
10. It was further observed in the same:—
“It is well known that the question whether the two marks are likely to give rise to confusion or not is a question of first impression. It is for the Court to decide the question…….It is well recognised that in deciding a question of similarity between the two marks, the marks have to be considered as a whole………….. Again, in deciding the question of similarity between the two marks we have to approach it from the point of view of a man of average intelligence and of imperfect recollection. To such a man the overall structural and phonetic similarity and the similarity of the idea in the two marks is reasonable likely to cause a confusion between them.”
11. Their Lordships were of the opinion that commodities concerned in the present case were so connected as to make confusion or deception likely in view of the similarity of the two trade marks.
12. Our High Court in “Havali Ram v. The State” (AIR 1956 All 132) observed that the test 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. It is the totality of impression which is likely to be left by the trade marks in the mind of a probable purchaser that has to be considered; the difference on non-essential points are not important.
13. In “Arvind Laboratories v. Annmalai Chettiar” (AIR 1981 NOC 13) (Mad), it was held that if the Courts come to the conclusion that an ordinary purchaser of the goods in question could not be able to distinguish between the offending mark and the registered mark, the Court will be justified to come to a conclusion in favour of the registered owner of the trade mark. The question of possibility of confusion is not to be decided on the basis of a person looking at the two trade marks side by side, but on the basis that normally a Customer will see one trade mark in the absence of the other and will have to make up his mind about the trade mark before him being one he is looking for or not in the light only of his general recollection of what the nature of the trade mark sought for by him was. In deciding the question of similarity between the marks, the Court has to approach the subject from the point of view of a man of average intelligence and of imperfect recollection. The trade mark is the whole thing, that is the total thing registered and it is the whole thing or the whole word which has to be considered. The resemblance between the two marks may be phonetic, may be visual, may be auditory or may lie in the meaning of the word mark.
14. Now having noticed the principles of deciding the infringement of Trade Mark I now proceed to see if there has been any infringement of Trade Mark registered in the name of Seth Brothers as ‘SCHIMMER'S mala’ by the respondent. On the label of the phial of schimmer's mala the word ‘mala’ appears in black rectangle in while colour. The word ‘SCHIMMER'S’ Appears over and ‘Regd. T.M No. 215930’ as per below it. Those words are printed on yellow brownish colour. This phial is sealed with golden colour top. The scent manufactured by the Firm of the respondent is contained in a phial, which is more or less of the same size as in ‘SCHIMMER'S mala’. The sealed top appears to have the same colour. The label of the phial manufactured by the respondent contains word ‘Mala’ in black rectangle. The letters are white. Only letter ‘M’ is a bold letter. Above word ‘Mala’ the word appears ‘Kangaroo’ and below it the name of the Firm ‘BHARAT DHUJ SHY AM BIHARI’. These words appear in red colour. Before the word ‘Mala’, ‘NEW appears. The words ‘Kangaroo’ and ‘NEW’ appear in such small letters that a person who knows English very well will too find it difficult to read then unless he tries to read them with some degree of concentration. In the top of the plastic cover in which this phial is contained the word ‘Kangaroo with Registered Trade Mark No. 240714’ are written in Hindi. If the Trade Mark of Seth Brothers acquired reputation in the market as is claimed by P.W 3 Nand Kishor then this particular scent would be known as ‘Mala’ and the customer of ordinary or average intelligence would demand from the dealer ‘mala’. If any body who looks at the phial manufactured at the respondent's Firm would take it to be ‘Mala’ and in normal course would fail to notice the words ‘Kangaroo’ and ‘NEW’ as they are written in very small letters. An average man with imperfect recollection would omit to remember the word ‘SCHIMMERS's and he will purchase the phial manufactured by the respondent's Firm treating it to be the same as ‘mala’ registered in the name of the Seth Brothers as the phial manufactured by the respondent's Firm is deceptively similar to the phial of ‘mala’ manufactured and sold by Seth Brothers.
15. The learned counsel for the respondent has drawn my attention to the statement of Nand Kishor P.W 3 in which he stated, “Jaise Hina, Khas, Champa, Gulab Khushboo hoti hai usitarah Hena bhi khushboo hai”. It has, therefore, been pointed out that if it is an ordinary scent manufactured from flowers like Khas, Champa, and rose etc. etc. the question of infringement of Trade Mark would not arise. In my opinion, he has picked up this statement shorn of the context as his further statement is, “Lekin uprokta Hina sadi ki khusbhoon se alag hai aur iski ek vishesh khushboo hai”. The learned counsel for the respondent has not been able to show that there is anything like a separate scent known ‘Mala’ just as those prepared from Gulab, khas and Chempa etc. etc. Had this contention been correct then the Trade Mark Authorities would not have registered the word ‘mala’. ‘Mala’ scent manufactured by Seth Brothers appears to be a compound of different scents producing a separate and distinct aroma and as such they obtained its Trade Mark rights. Thus, there is hardly any doubt about the fact that the respondent by producing ‘Mala’ scent from his Firm and putting it in market has infringed the Trade Mark of Seth Brothers'.
16. I have carefully gone through the judgment of the lower appellate Court in order to find out if he could reasonably take the view taken by him.
17. The learned Sessions Judge was of the view that the labels on the Mala scent manufactured by the respondent and the label of Mala scent manufactured by the Seth Brothers are not deceptively similar. I have discussed this matter and have reached the conclusion that a man of average intelligence with imperfect recollection is bound to be deceived by the Mala manufactured by the respondent. I have elaborately dealt with this matter and I need not repeat the reasons.
18. The learned Sessions Judge was also of the view that Mala is like any other scent such as rose, khas, champa etc. etc. This is however, not correct. It seems that the learned Sessions Judge was led astray by a stray sentence taken from P.W 3 Nand Kishore's statement out of content.
19. The learned Sessions Judge has further referred to the plastic cases in which these phials are contained. Plastic coverings of both are more or less similar. On plastic covers word ‘Mala’ does not appear but only names of Firms appear.
20. The Learned Sessions Judge has not approached the case from the point of view of a man of average intelligence with imperfect recollection. All the minute distinctions pointed out by him could be drawn if the two phials are compared side by side. A customer is normally not expected to have them side by side. In normal course he will see one in the absence of the other. He is, therefore, in all probability likely to be confused and deceived. Respondent Kishori Lal Agnihotri has, therefore, clearly commited offences U/Ss. 78(a), 78(b) and S. 79 Trade and Merchandise Marks Act.
21. The Act of the respondent Kishori Lal Agnihotri in infringing Trade Mark ‘mala’ of Seth Brothers must have caused ample monetary loss to the Seth Brothers. The sentences passed by the learned Judicial Magistrate seems to be the proper sentence. The appeal is allowed. Acquittal of respondent Kishori Lal Agnihotri is set aside. The order of the Learned Judicial Magistrate convicting him under Ss. 78 and 79, Trade and Merchandise Marks Act and joint sentence of three months R.I and a fine of Rs. 1000/- is restored. The respondent shall be taken into custody to serve out the sentence of imprisonment.
22. Appeal allowed.
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