T.P. Naik, J.
1. This is an appeal by the complainant Shiv Prasad against the acquittal of the accused-respondents Shyamlal and Jeewanlal of offences Under Section 482 of the Indian Penal Code. The accused-respondents were convicted by the Magistrate Second Class, Sihora for having used false trade mark and sentenced to pay a fine of Rs. 500/-each, or in default to undergo rigorous imprisonment for three months each. The complainant was awarded Rs. 400/- as compensation out o1 the fines realised. The Sessions Judge, Jabalpur on appeal set aside the aforesaid conviction and sentences.
2. The facts necessary for the purpose of this appeal are as follows. The Firm of M/s. Udhavji Shrikishan Das are bidi manufacturer of Satna, Tahsil and District Satna, M. P. The complainant Shiv Prasad is the agent of the Firm who sells the firm's bidis in various parts of Uttar Pradesh including Gorakhpur district. The accused-respondents are the proprietors of 'Majholi Jai Hind Bidi Factory' situate at Majholi, tahsil Sihora, District Jabalpur. They also sell the bidis manufactured by them in the district of Gorakhpur. Both the Firms wrap their assembly of 35 bidis each called a 'katta' into a wrapper of tissue paper which has their special design printed on it. The motif of the special design printed on the tissue paper consists of a part of the design of his trade mark which is a square of a light background with a circle of the darker shade in the centre.
The colour scheme of the whole design is green of two shades. In the central circle is inscribed the figure '47' and & the four sides of the square is the writing 'Udhavji', 'Shrikishan Das', 'Bidi Merchant' and 'Satna' respectively in Deva-nagari script. Over this wrapper is pasted a label which is the trade mark of the Firm. It has also a distinctive design. On a dark-green background, there is a circle in the centre in red which has the figure '47' inscribed in it. Above this circle is a scroll which opens upwards. There is another scroll below the circle which opens downwards.
The upper scroll has inscribed on it the name of the manufacturers printed in English in black on a red background; while lower scroll has the name of the manufacturers printed in black Devnagri script on a red background. On either side of the circle on four corners are four small circles, two on each side. In the circles on the right hand side is written 'No. 47' in Hindi and Devnagri script respectively; while in the circles on the left side is written 'Bidi' in Hindi and Devnagri script respectively. This design has been in use of the complainant's firm continuously from the year 1947 and has thus come to be associated with the trade of the complainant's firm.
3. The firm of the accused-respondents which we shall call 'Majholi Firm' started manufacturing their bidis since March, 1957. Their katta ot bidis is also covered with a tissue paper bearing a design printed on it, the motif of which is also a square in a/lighter shade with a circle in the centre in a darker shade with the difference that id this case the circle in the centre contains the figure '57'. The Colour scheme is the same as that of the complainant's firm viz., the two shade of green. The other design of this wrapper is also similar except that the writing contains the name of Majholi Firm instead of the names of the Satna Firm. This katta also contains a label of about the same size.
The colour scheme and design of this label are also the same as those of the complainant's bidis except that the circle in the centre of the label is printed in red with the figure '57' inscribed in it. The background in which the main circle stands is green. Here again there are two scrolls at the; top and bottom of the centre circle respectively. The upper scroll opening upward and lower scroll opening downward. The writing on these scrolls is the name of the manufacturers viz., Majholi Jai Hind Bidi Factory printed in English and Devnagri script respectively. The background on which the printing has been done in these scrolls is light yellow. On the two sides of the central circle are four smaller circles containing the figure '57' in English and Devnagri script on the right, and the figures 'S. V.' and on the left..
4. The case of the complainant is that the special design in the trade mark of the complainant's bidis which has come to be associated with the bidis manufactured by the complainant's film has been so copied out by the Majholi Firm of the accused-respondents as was reasonably calculated to cause it to be believed that the goods be marked by the latter or any goods contained in any such receptacle so marked have a connection in the course of trade with the complainant with whom they have not any such connection. The complainant, therefore, says that the accused have used a false trade mark within the meaning of Section 482 of the Indian Penal Code and as they have given no evidence to show that they had acted without intent to fraud, they were liable to be punished Under Section 482 of the Indian Penal Code.
5. 'Using a false trade-mark' is denned in Section 480 of the Indian Penal Code in the following words:
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.
6. The gravamen of the offence is that the accused marked the tissue paper containers of the Bidi-kattas manufactured by them in a manner reasonably calculated to cause it to be believed that they were the Bidi kattas of the complainant's firm, i. e., the general 'get-up' of the bidi kattas of the accused as designed and used by them had such an overall similarity with the Bidi-kattas of the complainant's firm that it was reasonably likely to mislead an unwary purchaser who wa9 acquainted with the 'get-up' of the bidis of the complainant's firm but who trusted to his memory.
7. Various tests have been laid down by the Courts from time to time to determine the question. In a case arising under the Trade Marks Act (1940), where the question was whether the appellant's trade mark which the Registrar had refused to register was likely to deceive or to cause confusion', the Supreme Court in National Sewing Thread Co., Ltd., Chidambaram v. James Chadwick and Bros. Ltd. : 4SCR1028 said
The real question to decide in such cases is to see as to how a purchaser, who must be looked upon as an average man of ordinary intelligence, would react to a particular trade mark, what association be would form by looking at the trade mark, and in what respect he would connect the trade mark with the goods which he would be purchasing.
In Thomas Bear and Sons (India) Ltd. v. Prayag Narain A.I.R. 1940 PC 86 in an action to restrain infringement of trade mark rights and passing off, Viscount Maugham speaking for the Board said at p. 88.
The vital element in such a case is the probability of deception. This may depend on a number of matters as well as the question of similarity of the marks or of the get-up. Witnesses can be called to prove the circumstances and the places-in which the articles are sold, the classes of persons who buy them, and whether they include persons who are illiterate or ignorant or the reverse, the manner in which the public are accustomed to ask for the articles, and any other matters which will assist the Court to decide whether deception is probable. Evidence of actual deception may be available, and if available may be very valuable. There is no such person as an expert in human nature, and it is now well settled that a witness cannot be called to say that it is likely that purchasers of the goods will be deceived. This can only be a matter of opinion formed after the dispute has arisen, and too often without any judicial consideration of the opposing contentions. Ob the other hand, a person who is accustomed to buy the articles in question may be called to say that he would himself be deceived, and cross-examination will often show what weight should be attached to such a statement.
* * * *Their Lordships think 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. of the device on it. This has been settled in England since the case of Seixo v. Provezende (1866) 1 Ch A 192, where there will be found some remarks by Lord Cranworth L. C. very relevant to this matter. He also pointed out (at p. 197) that the adoption by a rival trader of a mark which would cause his goods to bear the same name i the market, may be as much a violation of the rights of the first owner as the actual copy of his device. This same view was taken in Johnston v. Orr Ewing (1882) 7 AC 219, a case relating to the use of two elephants on tickets placed upon goods, for sale in India. See as to the effect of the differences between the tickets the remarks of Sel-borne L. C. ( (1882) 7 AC 2T9, 224 et seq). Further, it is not an answer to the claim of a trade who has established, as the appellants have don& in the present case, the right to a trade mark (e. g., a device or a fancy word) to say that, apart from the device or the word, the labels or containers of the rival trade are very different from-those of the trade mark owner. It may be observed that, if it were so, such a trade mark would be of little value, for its use by several traders would soon result in its becoming common to the trade. (See, Wotherspoon v. Currie (1872) 5 HLC 508 and (1882) 7 AC 219. In the present case-there may well have been persons who know of' the reputation of the appellants' 'elephant mark' goods, but were illiterate, or did not know or did not remember the particular get-up of their goods; and again, the differences of labels and get-up might have been supposed to have been made by the appellants themselves in putting a different or cheaper article upon the market. 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 tile mark.
Their Lordships further pointed out at p. 89 that
The question differs from the question whether a particular mark or name is an imitation 01 3. colourable imitation of a mark or name used by the plaintiff. There the judge has before Ms eyes the materials for a decision; and in some cases it cannot be doubted that the judge can Himself decide on the degree of resemblance or on the materiality of alleged differences of the marks or words (North Cheshire and Manchester Brejvery Co. v. Manchester Brewery Co. 1899 AC 83; Pay ton and Co., Ltd. v. Snelling, Lampard and Co. Ltd., 1900-17 RPC 6,28 per Lord Macnaghten, at p. 635). If the decision of the Court of Appeal in ,London General Omnibus Co. v. Lavell 1901 1 Ch A 135 or some of the dicta in that case, are contrary to these decisions, it cannot be relied upper. On the -other hand, there are many trade mark and pass-ing-off cases which cannot be decided by a visual comparison of the rival marks or names and must-depend on the evidence of witnesses. That, indeed, is nearly always the case when there are factors involved other than the mere resemblance of the marks or words. In the present case, a judge may be entitled to form his own view as to the resemblance of the elephants in shape and colour, or on the differences between them; ....
8. In the. instant case we have both the kattas of Bidis before us and can decide for ourselves whether the general 'get-up' of the katta of the accused is a colourable imitation of the 'Katta' of the complainant. What is compendiously called the 'get-up', is the general size, shape and dress in which the goods are presented to the buyer. Size and shape are common to the trade as the Bidi kattas are usually packed in like size .and shape. It is the dress the material, colour, and decoration of the wrapper, the motif of the trade mark label and its colour combination, the lettering and their arrangements which gives to the goods their individuality.
9. Here again we must remember that it is only things which are put forward prominently that catch the eye and remain in the memory. The details are forgotten or at most, may only be faintly recollected, but the general theme may impress the memory. For this purpose we must also beat in mind that the bulk of the purchasers of the Bidis would be unlettered rustics to whom the lettering on the wrappers or the labels may be meaningless. It is only the bold motifs of the design and the colour combination that will impress on their minds. It would be too much to expect them to remember the exact details of the marks, letterings or numbers when there was a great overall similarity in the motifs and the colour combinations. Thus for example as pointed by Kerly on Trademarks a mark may represent a game of football; another mark may show players in a different dress and in very different positions; and yet as the idea conveyed by each might be simply a game of football, one may be held to be a colourable imitation of the other. In Re Barker's Trade Mark, (1885) 53 LT 23, a firm of distillers registered as a trade mark for their Cherry Brandy, a. hunting scene, in connection with the word 'sportman'. Some years afterwards another firm of distillers registered a trade mark consisting oil a hunting scene having no resemblance with the former and called his Cherry Brandy 'Huntsman Cherry Brandy'. Kays, J., notwithstanding the dissimilarity in the designs held that the latter trade mark was calculated to deceive.
10. In Bryant and May, Ltd, v. United Match Industries, Ltd. (1933) 50 RPC 12, the similarity between the upturned scrolls on the labels of the Bryant and May's and Alpha match boxes, with an object surrounded by water placed immediately above them in their concavity, was held to be sufficient for the conclusion that not only was confusion possible but indeed probable.
11. In the instant case. the motif is the same e. g., a red circle in the green background with two scrolls one above and one below and four smaller circles, two on each side of the big circle The colour1 scheme is also very similar not only of the label but of the wrapper also. The difference in number e. g., 47 in the complainant's circle and 57 in file circle of the accused is not such a prominent variation either of the theme, 01 of the general motif and designing or of the colour schemes as to hold that the accused's 'get-up' 01 label was not a' colourable imitation of the complainant's trade mark likely to deceive an unwary purchaser who trusts to his memory for recollecting the trade mark of the complainant's goods.
12. Coming now to the evidence, the question here is whether the wrapper and the label of the accused is a colourable imitation of the mark used by the complainant on his bidis. Here the Judge has before his eyes the material for the, decision and consequently the evidence of witnesses that the mark of the accused was a colourable imitation or calculated to deceive an unwary purchaser would only be their opinion on a matter on which the Judge has to give his decision. He cannot surrender his own independent judgment to any witness whatever (See (1901) 17 RPC 628 at p. 635) and consequently the question shall have to be decided by us by looking at the marks for ourselves. We have looked at the two marks carefully and in our opinion the mark of the accused is a colourable imitation of the mark of the complainant and was likely to deceive an unwary purchaser of the class which usually purchases the bidis in question.
13. P.W. 3, Gopaldas, who is a partner of the firm of the complainant tells us that his bidisi are little smoked by those who are conversant in English. Besides it is a matter of common experience that Bidi being the smokes of the masses, the majority of those who buy them belong to the illiterate unlettered class of the people. To such persons the lettering in the labels and the presence of the number in the. red circle will not have much meaning nor shall it (the number) make it ; marked distinctive feature of the complainant's or the accused's trade mark.
14. It was vehemently contended by the. learned Counsel for the accused that the bidis are demanded by numbers, that those who want to buy complainant's bidis ask for 47 number and those who want to buy the bidis of the accused ask for 57 number and that consequently there could be no room for deception, This contention loses sight of the fact that it is not the lettered Section 01 the population we are dealing with but the illiterate, unlettered Section who are not conversant with the Roman lettering. The fact therefore that they ask for 47 number or 57 number is of no consequence as they lack the capacity to verify whether the correct number is given. It has therefore been repeatedly stressed that the emphasis is on a unwary purchaser being likely to be deceived and not on his being actually deceived. On the other hand, we have the evidence that the bidi kattas of the complainant are one old pice (3 pies) dearer than the bidi kattas of the accused the former selling for 1 as. 9 pies, while the latter for 1 as. 6 piece (See the evidence of Chirakut Prasad (P.W. 4), Sukhram : (P.W. 5) and Kesharichand (P.W. 7) ) and that consequently sometimes when asked to sell No. 47, number 57 has been successfully palmed off on tile ignorant unwary purchaser who could not distinguish between the two by their appearance and get-up. (See the evidence of Chirakut Prasad (P.W. 4) and'Ram Agya Prasad (P.W. 6)). Gopal Prasad (P. W, 3) also tells us that report had been received of such deception. The testimony of these witnesses has not been shaken in their cross-examination and we see no reason to doubt it. There is also the evidence that the printing of the trade mark of the accused was refused by the Shivraj Litho Works on the ground that the Trade Marks of the accused (Jhillee and labels) were colourable imitation of the trade mark of the complainant (See the evidence of Gopinath (P.W. 2) and the correspondence between the firm of the accused and Shivraj Litho Works, Exs. P-3, P-4, P-5, P-6 and P-7). This evidence further shows that the accused had knowledge of the complainant's trade mark and of its apparent similarity with their trade marks and yet they persisted in its use.
15. Reliance was placed on the decision of Khan, J., in Chandkhan v. Kishanlal Gangaram : AIR1958MP242 wherein the learned Judge held that when the numbers on the packages are different, it cannot be said that the accused had used false trademarks within the meaning of Section 482 of the Indian Penal Code. In our opinion, the proposition is too widely stated. We have no means of knowing whether in that case in spite of a difference in numbers there was an overall similarity between the two lables sufficient to deceive an unwary purchaser or whether the difference in numbers made the motifs of the two trade marks so dissimilar that there could not be any reasonable possibility of deception, As stated by us earlier, the mere difference in detail and the difference in number may only be a matter of detail as in the instant case does not prevent the two trade marks being essentially the same, if the main motif and the colour scheme which more firmly impresses itself on the mind is the same. The number on a label of a trade mark may be only a matter of detail or may be the motif itself. Where it is only a matter of detail in a larger motif of which it (the number) only forms a part, it will only help the literate who are well conversant with the English numbers to distinguish one trade mark from ano- ther. In the instant case the unwary illiterate village rustic to whom the English numbers will make no sense and from whom it is too much to expect that they would correctly associate the number in print (47 or 57 as the case may be) with the sound (fortyseven or fiftyseven as the case may be) associated with it, the difference in numbers in the two trade marks would not be a distinguishing feature where the overall similarity is otherwise great.
16. We are, therefore, of opinion that the acquittal of the accused was improper and has occasioned a failure of justice. We accordingly set aside the order of acquittal and convict the accused Under Section 482 of the Indian Penal Code. As for the sentence, we restore the sentences passed on the accused by the trial Court e. g., we sentence each of the accused to pay a fine of Rs. 500/- or in default to suffer rigorous imprisonment for a period of 3 months. An amount of Rs. 400/-out of the fines realised shall be paid to the complainant as compensation.
17. The property seized shall be forfeited to the State and shall be sold by public auction. The sale proceeds thereof shall be credited into the treasury.