Shiv Dayal, J.
1. This is an appeal on special leave under Section 417(3), Criminal Procedure Code.
2. The appellant is Karta of a joint Hindu family which carries on business of manufacturing and selling bidis in bundles. Every bidi bundle is wrapped in tissue paper called 'Jhilli'. Over the above Jhilli a label is pasted which bears the figure of a flower and the name 'Taza Phool'. This mark is registered as trade mark No. 163453. The date of registration is 24th March, 1954.
3. The accused also is a manufacturer and dealer of bidis. He trades in the name and style of 'Shafi Bidi Co.' His bidis are also wrapped in tissue paper (Jhilli) with a label pasted over it.
4. The appellant filed a complaint against the respondent under Sections 482, 483 and 486 of the Penal Code. He alleged that his bidis are very popular and are in great demand by the smokers of all classes. Looking to the great demand of Taza Phool bidis manufactured by the complainant-firm the accused of late started using a label 'Tai Phool', counterfeiting the trade-mark of the complainant-firm with the intention to practice deception upon the purchasers. The figure of flower on the label used by the accused fully resembles the one appearing on the label used by the complainant
5. The accused admits that he is using that label but denies that it resembles the label used by the complainant.
6. The learned trial magistrate came to the conclusion that the accused had intentionally used the label 'Tai Phool' which is imitation of the trade mark of the complainant and it was used in such a manner as to be mistaken for the trade mark of the complainant 'Taza Phool' Accordingly, he held the accused guilty under Section 482, Penal Code, but while awarding sentence, he took into account the fact that some other persons were also using similar labels and the complainant had been sleeping over his rights for several years. Accordingly, he sentenced the accused to pay a fine of Rs. 250/-; in default, to suffer two months rigorous imprisonment. He further awarded Rs. 200/- as compensation to the complainant cut of the fine, if recovered
7. The respondent appealed against his conviction. The learned Sessions Judge, Bhopal, set aside the conviction on the more ground that in consequence of the enactment of the Trade and Merchandise Marks Act, 1958, and the consequent amendment of Section 482, Penal Code, using a false trade mark is no more an offence punishable under Section 482, Penal Code; and, it was not the complainant's case that the accused used a false property mark. Distinction between trade mark and property mark was emphasized. The learned Sessions Judge also laid stress on the fact that the accused produced several bidi labels and he was further of the view that the label used by the accused is quite distinguishable from that used by the complainant. He pointed out two points of distinction (1) The complainant's label bears his name on upper part of it in English as 'Har Prashad Shiv Prashad Bhopal', and on the lower part of it as 'Bhopal Har Prashad Shiv Prashad' in Hindi On the label used by the accused, the words written are 'Laxmi Talkies Road, Bhopal' (in English) at the top, and 'Shafi Bidi Company' (in English) at the bottom. (2) On the complainant's label, the words 'Bidi No. 1' are printed, while on the label used by the accused the words are 'Bidi No. 11'. The learned Judge relied on Chandkhan v. Kishanlal, AIR 1958 Madh Pra 242.
8. in our opinion, the learned Sessions Judge was right to this extent that conviction could not be based on Section 482, Penal Code. Before the enactment of the Trade and Merchandise Marks Act, 1958, (Act No. 43 of 1958), (hereinafter called the Act), Section 482 of the Penal Code provided for punishment for using any false trade mark or any false property mark. But by virtue of Section 35 of the Act read with the schedule, the words 'any false trade mark or' have been omitted. But that does not make any difference so far as the merits are concerned. If the facts alleged by the complainant are proved, merely stating a wrong provision of law will not absolve the accused of his guilt, provided those facts constitute an offence under another provision of the law. The amendment to Section 482 of the Penal Code was simultaneous with the enactment of Section 77 of the Act. Subsection (2) of Section 77 of the Act reads thus:--
'A person shall be deemed to falsely apply to goods a trade mark, who, without the assent of the proprietor of the trade mark, --
(a) applies such trade mark or a deceptively similar mark to goods or any package containing goods;
(b) uses any package bearing a mark which is identical with or deceptively similar to the trade mark of such proprietor, for the purpose of packing, filling or wrapping therein any goods other than the genuine goods of the proprietor of the trade mark.'
Any trade mark so falsely applied is a 'false trade mark' within the meaning of the Act. Section 78 of the Act prescribes penalty. Any person, who falsely applies to goods any trade mark, shall, unless he proves that he acted without intent to defraud, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both. Thus, falsely applying a trade mark, which was formerly an offence under Section 482, Penal Code, is now punishable under Section 78 of the Act.
9. Shri Usmani, learned counsel for the respondent, laid a great deal of stress on the fact that in the charge which was framed against the accused, there is no mention of Section 78 or 77 of the Act. But there if complete answer to this objection in W. Slaney v. State of M.P., AIR 1956 SC 116 where it is laid down thus:--
'. ..... the Code (Cr. P. C.) is a Code of Procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice.
If he does, if he is tried by a competent Court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.'
Section 535, Criminal Procedure Code, enacts the effect of omission to frame a charge. This section is not confined to cases where no charge at all has been framed, but is equally applicable to a case of omission to frame a charge of the offence of which the accused may be convicted. The omission to frame a charge is not per se fatal. This is not to say that omission to frame a charge is not a grave defect and should not be vigilantly guarded against. In some rases this defect may turn out to be so serious that by itself it may vitiate the trial. But where there, is inadvertence to frame a charge and the 'facts proved by the prosecution constitute a separate and distinct offence but closely relevant to and springing out of the same set of facts connected with the one charged', Section 535 comes into play. (See observations of Chandrashakhara Aiyar and Jagannadhadas, JJ., in W. Slaney's case, AIR 1956 SC 116, (supra) in that ruling. Das, Acting C. J., and Bose, J. went a step further when their Lordships observed that Sections 225, 232, 535 and 537 between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from the start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that whatever the irregularity, it is not to be regarded as fatal unless there is prejudice
10. in the present case the learned Magistrate, who framed the charge, by inadvertence mentioned Section 482 of the Penal Code, instead of the appropriate section, that is, Section 78 of the Trade and Merchandise Marks Act, 1958. Having regard to the allegations in the complaint and the substance of the accusation contained in the charge, it was otherwise a proper charge and would have been the correct charge before the amendment to Section 482 of the Penal Code. The charge specifies the allegation that the accused used on the label of his bidi bundles, the mark which denoted that the bidis were the manufacture of Hari Prasad, whose manufacture they were not and that this was done in a manner reasonably calculated to positively believe that such goods were the manufacture of Hari Prasad. We unhesitatingly hold that the accused was well aware of the accusation against him and the substantial facts in respect of it.
11. We are clearly of the view that where the accused had notice of the allegations against him, which constitute an offence under Section 78 of the Trade and Merchandise Marks Act, 1958, the trial is not vitiated, because of inadvertent reference to Section 482, Penal Code, in the charge.
12. Adverting now to the merits, we find that the mark used by the accused so nearly resembles the complainant's trade mark as to be likely to deceive and cause confusion. The figure of a flower, the design and the colour scheme on the label used by the accused so closely resemble those on the label of the complainant that an unwary and illiterate purchaser will not be able to make any distinction between them. It is only when one brings the two together, 'side by side', and reads the words written on them that, one is able to make a distinction between them. During the course of the hearing, Shri Usmani contended that the marks were not similar. When he was shown both the labels which are pasted on one and the same sheet of paper in the record, he could not even from a little distance say which was of the accused and which of the complainant. It was only when he read the words 'Taz Phool' and 'Tai Phool' and the name of the manufacturers that he was able to say which was which.
13. Shri Usmani strongly relied on AIR 1958 Madh Pra 242, a decision of a learned Judge sitting singly.
14. As a decision of this Court has been relied on by respondent and the Sessions Court, we shall deal with the question of law in some detail. The authority is overwhelming for the view we take. Illuminating observations were made by Byrne J. In Clerk v. Sharp, (1898) 15 R. P. C. 141 at p. 146.
'One must be aim mind the points of resemblance and the points of dissimilarity attaching fair weight and importance to all. but remembering that the ultimate solution is to be arrived at, not by adding up and comparing the results of such matters, but by judging the general effect of the respective wholes.'
Side by side comparison has never been held to be the proper test, Lord Cranworth, in Seixo v. Provezende, (1866) 1 Ch. 192 at p. 197 expressed himself thus:--
'It would be a mistake, however, to suppose that the resemblance must be such as would deceive persons who should see the two marks placed side by side. The rule so restricted would be of no practical use.'
In Re Christiansen's Trade Mark, (1886) 3 R.P.C. 54 at p. 63. Lord Lindley. L J. said:--
'If the dissimilarity is so small, and the common features are so numerous, that the two as a whole are similar, the dissimilarity goes for nothing;. . . '
In the Upper Assam Tea Co. v. Herbert & Co., (1890) 7 R. P. C. 183, where both the plaintiff and the defendant had registered trade mark consisting of an elephant for tea and coffee respectively Cotton, LJ., observed at p 186 --
'I think there is here sufficient similarity, I do not say that the plaintiffs can claim all elephant marks, but one looks only at these particular elephant marks, and although there is the difference of the elephant in the defendants' mark turning his head in a most inconvenient way, yet I do not think that that, and the fact that the plaintiffs' elephant is in profile, are sufficient to prevent this mark used by the defendants from being passed oil as the plaintiffs'. Of course when one person imitates another's mark he never takes it absolutely in all points -- if so there is no question -- But there is always a similarity and dissimilarity in order that he may say 'if you look at the marks carefully you will see such a difference that you cannot be deceived'.'
Lord Halsbury succinctly stated in Schweppes Ltd. v. Gibbens. (1905) 22 R P. C. 601 at p. 607 --
'The whole question in these cases is whether the thine taken in its entirety, looking at the whole thins is such that in the ordinary course of things a person with reasonable apprehension and with proper eyesight would be deceived.'
Lord Macnaghten, in Hennessy & Co. v. Keating, (1908) 25 R. P. C. 361 at p. 367 observed as follows --
'I rather think you may be beginning at the wrong and if you start by putting the marks or labels, that happen to be in controversy, side by side, and then, at once and off hand, pick out points of resemblance and points of differences or jump to a conclusion at the first glance.'
Similar observations were made by Sargant, J., in the matter of an Application for Registration of a Trade by Sandow Ltd.. (1914) 31 R. P. C. 196 at p. 205 --
'The question is not whether if a person is looking at two trade marks side by side there would be a possibility of confusion; the question is whether the person who sees the proposed trade mark in the absence of the other trade mark, and in view only of his general recollection of what the nature of the other Trade Mark was, would be liable to be deceived and to think that the Trade Mark before him is the same as the other, of which he has a general recollection.'
It was observed in De Cordova v. Vick Chemical Co; (1951) 68 R P C 103 at n. 106 (PC), as follows:--
'The likelihood of confusion or deception in such rases is not disproved by placing the two marks side by side and demonstrating how small is the chance of error in any customer who places his order for goods with both the marks clearly before him for orders are not placed, or are often not placed, under such conditions. It is more useful to observe that in most persons the eye is not an accurate recorder of visual detail and that marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole.'
15. It was pointed out in T.B. and Sons v. Prayag Narain, AIR 1940 PC 86 that since a purchaser will seldom have the two marks actually before him, when he makes a purchase, the test of comparison of marks side by side is not a sound one
16. in V.S. Subbiah Nadar v. E. P. Kumaraval Nadar, (1946) 63 R. P. C. 187, the plaintiff's registered trade mark consisted of his portrait in Marathi head-dress surrounded by rays of light and other distinctive features, while the defendant's trade mark consisted of the latter's portrait also in Marathi-head dress similar to the dress and headdress of the plaintiff and surrounded by almost identical features. Their Lordships of the Privy Council, in holding that the defendant's mark was infringement of the plaintiffs, observed that the purchasers of the bidis who are generally illiterate, would not make a close examination of the labels on the bidis which they purchase; that the general effect on their minds would be to confuse the bidis sold under the marks and lables of the defendants with those sold under the plaintiff's trade mark; that the similarities were so close as to make it impossible to suppose that such marks were devised independently of each other; and that in the absence of any evidence of common origin, the conclusion must be that the defendant copied the mark of the plaintiff.
17. in out opinion, the law on the point is quite clear and may be recapitulated thus: (1) A mark is deemed to be deceptively similar to another mark, if it so nearly resembles that other mark as to be likely to deceive or cause confusion. (2) What degree of resemblance is necessary from the nature of things is a matter incapable of definition a priori. (3) Generally speaking, the question of likelihood of confusion must be fudged in a common sense way having regard to the whole matter and to the visual and phonetic resemblances of the mark. (4) Each of the marks must be looked at as a whole and not merely at particular differences and resemblances. The Trade mark is the whole thing -- the whole picture on each Any isolated dissimilarity or resemblance must not be taken by itself and a conclusion based thereon. (5) Minor details or non-essential points of difference between the marks have no importance where the idea is the same.
See also Corn Products v. Shangrila Food Products, AIR 1960 SC 142 where their Lordships have laid down that the question whether the two marks are likely to give rise to confusion or not is a question of first impression. And, 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
18. Applying these principles and tests to the present case, there is no escape from the conclusion that the accused imitated the complainant's registered trade mark. The most important features of resemblance are the figure of the flower the hand that hold? it and the design and the colour scheme as a whole. We are firmly of the opinion that the close resemblance is not a matter of accident but is deliberate and designed.
19. in AIR 1958 Madh Pra 242 (supra] there was a distinction in the number used by the complainant and that used by the accused. On the packages of the complainant's bidia, the labels bore No. '16', whereas the labels on the bundles of the bidis of the accused bore No. '19'. On that basis alone it was held that the accused was not guilty of passing off. It was observed that just because the numbers on the packages were different, it could not be said that the accused marked his goods in a manner reasonably calculated to cause it to be believed that the goods were other than those of the accused. It was also observed that the difference in the numbers was so patent on the face of it that it could not reasonably cause a misapprehension. In that case, the decision in AIR 1940 PC 86 (supra) and the other decisions, which were relied on for the complainant, were not followed on the ground that 'they bear no discussion whatsoever on the point which is the basis of my decision, namely, the effect of difference in numbers on the two labels'. In that decision, other facts are not given. If in spite of a general resemblance satisfying the tests we have stated above, the only dissimilarity was in respect of the number on the label used by the accused, it must be said with the utmost respect that that decision did not lay down the correct law
20. It was, then strenuously contended for the respondent that he had been using the mark from a time before the complainant's mark was registered. The only piece of evidence on which reliance was placed before us is that of Madanlal (D.W. 5), who says that the accused got 'Tai Phool' labels printed at his Press 'Indore Fine Arts Litho Works' as back as in the year 1948. In support of this statement counter-foil of a bill (Ex. D-C) contained in the book of counterfoils of bills was produced. What we find is that in the book of counter-foils, there are printed form? with a blank paper in between every two printed forms but nothing appears on those blank paper; they are all blank. However, Ex. D-C appears on a blank (not printed) paper and there is no counter-foil on a printed form Secondly, after Ex. D-C. all other papers in the book, printed and unprinted. are blank. Thus Ex. D-C is the last document in this book It could be written at any time. Thirdly. Madanlal (D.W. 51 says that a new bill book is taken 'up' from Diwali. Now, Diwali in that year was on the 1st November. If this bill was drawn up on 5 November, it would have been on the new bill book. Therefore. In our opinion, Madanlal and the bill (Ex. D-C) must be disbelieved. We hold that the accused did not use or apply 'Tai Phool' mark before 24 March, 1954, on which date the complainant's 'Taza Phool' mark was registered.
21. The result of the above discussion is that the respondent must be held guilty under Section 78 of the Trade and Merchandise Marks Act, 1058. As regards sentence,we think that the sentence awarded by the trial court was inadequate but, since thecomplainant did not move this Court forenactment of sentence from the judgmentof the trial Court, we would, while settingaside the judgment of the appellate Court,restore the order passed by the trial Court.
22. The appeal is allowed. The orderof acquittal passed by the Sessions Judge isset aside. The accused is held guilty of theoffence under Section 78 of the Trade andMerchandise Marks Act, 1958, and is sentenced to pay a fine of Rs. 250/-; in default tosuffer two months rigorous imprisonment.Out of the fine, if realised, a sum of Rs. 200shall be paid to the complainant.