Kunhamed Kutti, J.
1. This revision case is directed against the conviction and sentence of fine of the two petitioners by the Sixth Presidency Magistrate, Saidapet, under Section 79 of the Trade and Merchandise Marks Act.
2. The facts of this case are somewhat peculiar. The two petitioners are said to be doing beedi business at 1/17 Narayanappa Garden St. Washermenpet. But, they were found in possession of beedi bundles bearing the trade marks of one Kareem Beedi factory, which, according to the prosecution, being for purposes of trade with a false trade mark was culpable both under Section 420 read with Section 511, I.P.C. and under Section 79 of the Trade and Merchandise Marks Act of 1958.
3. Ex. P. 20 is the complaint made by Abdul Kareem and Co., Manufacturers of the Kareem Beedi. In the course of investigation into this complaint, the Sub-Inspector, P.W. 1, traced the two petitioners who are brothers and searched their house as per the search list, Ex. P. 1, when he is said to have recovered bogus beedi bundles, ring labels, belly labels, etc. He further found on a close scrutiny that these labels are imitations of Kareem Beedi labels. It was proved through P.W. 5 that labels seized from the petitioners were bogus ones. P.W. 4, a servant of the petitioners for pasting labels, deposed that she pasted Exs, P. 9 and P. 15 the ring labels taking them to be Kareem Beedi labels as they looked like Kareem Beedi labels. A scrutiny of these labels with the genuine Kareem Beedi labels further revealed the. printing of the latter labels to he much clearer as compared to the former. Again while Kareem Beedi ring labels were printed on full size paper and contained 1,500 labels, the bogus ones were printed in quarter sheets and contained only 300 labels. There were also differences-in the wrapper used for genuine Kareen Beedi. bundles and packets and the ones used by the petitioners, and P.W. 5, swore that the different labels of Kareem Beedi have also been registered, under the Trade Marks Act.
4. The petitioners appear to have denied in toto the charges brought against them. According to the first petitioner, the properties produced in court were recovered from other places and not seized from his house. He would say that they were placed in his courtyard to make it appear that they had been seized from him while, as a matter of fact, he has no connection with beedi business. The second petitioner claimed to be the Secretary of the Madras Beedi Workers' Union and conceded that his brother, one Ramadas, was carrying on beedi business. He was implicated in the case because of the trouble between Ramadas and Kareem Beedi management. And, to make-out the plea that the petitioners were not doing beedi business and the beedis concerned in the case were taken from the house of Ramadas, they examined as many as four witnesses, D.Ws. 1 to 4.
5. The learned trial Magistrate has discussed the entire evidence in the case, oral and documentary, and has come to the conclusion that the only culpable offence committed by the petitioners was under Section 79 of the Trade and Merchandise Marks Act.
6. Section 79 is to the effect that:
Any person who sells, or exposes for sale, or has in his possession for sale or for any purpose of trade or manufacture, any goods or things to which any false trade mark or false trade description is applied...shall, unless he proves: (a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence, no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods; and (b) that on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things; or (c) that otherwise, he had acted innocently;
be punishable with imprisonment for a term which may extend to two years, or with fine or with both.
7. The proviso to the section is omitted as unnecessary.
8. The trial Magistrate has found ;on the evidence that the petitioners have not succeeded in bringing the case under one or the other of Clauses (a), (b) or (c). On the other hand, he found on the combined testimony of the Sub-Inspector, P.W. 1, Gunabhushanammal, P.W. 4 and the representative of Kareem Beedi factory, P.W. 5, that the bogus labels Exs. P. 9, P. 15 and the bogus M.Os. marked in the case used to be utilised to pass off beedies made for the petitioners as Kareem Beedis.
9. Sri Gopalaswami for the petitioners has however taken me through the relevant definitions and provisions of the Act in an attempt to make out that since Kareem Beedi mark was not in the Register of Trade Marks under Section 8 of the Act, and had not been registered under the present Act, no offence punishable under Section 79 (which is mot punishable under the Trade Marks Act of 1940) can be said to have been committed by the petitioners. The Trade Marks Act of 1940 has been superseded by the present Trade and Merchandise Marks Act, XLIII of 1958 which came into force on 25.11.1959. Section 50 of this Act reads that-
Notwithstanding anything contained in any law for the time being in force or in any contract or agreement, every registration made before the commencement of this Act of a registered user shall cease to have effect after the expiration of three years from such commencement.
There is no evidence in the case that subsequent to the expiry of the period of registration of the Kareem Beedi marks, they had been renewed or that the trade marks are in the Register of Trade Marks kept in the Trade Marks Registry Office, either in Part A or Part B register.
10. The question nevertheless is whether registration is a sine qua non for action under Section 79 of the Act. 'Trade Mark' as defined in Section 2, Clause (v) means-
(i) in relation to chapter X (which deals with offences, penalties and procedure) (other than Section 81), a registered trade mark or a mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark; and (ii) in relation to the other provisions of this Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or, as registered user to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark registered as such under the provisions of Chapter VIII.
Trade description as defined in Clause (u) of Section 2 means,
'any description, statement or other direct or indirect (inter alia) as to the name and address or other indication of the identity of the manufacturer or of the person for whom the goods are manufactured;' and 'false trade description' as defined in Section 2(f) means a trade description which is untrue or misleading in a material respect as regards the goods to which it is applied; or inter alia any marks or arrangement or combination thereof applied to goods in such manner as to be likely to lead persons to believe that the goods are the manufacture or merchandise of some person other than the person whose merchandise or manufacture they really are; or, any false name or initials of a person applied to goods in such manner as if such name or initials were a trade description, in any case where the name or initials...is or are identical with or deceptively similar to the name or initials of a person carrying on 'business in connection with goods of the same description and who has not authorised the use of such name or initials' - vide Clauses (f)(iv) & (v)(b).
11. It would thus appear that for sale or exposing for sale ox for having in one's possession for sale or for any purposes of trade, any goods or thing with any false trade mark or false trade description, to be penalised under Section 79 of the Act, registration of the trade mark or trade description is not necessary. 'Trade Mark' as now defined, comprises both registered and unregistered trade mark in use for purpose of Chapter X, other than Section 81. No doubt, by registering a trade mark, a person gets title to the mark established and it enables him also to avoid proving his title against any infringer of the mark. But, in the case of an unregistered trade mark, the only way in which its owner can protect his title is by means of an action for passing off where he will have to prove not only title by prior use but also by abundant evidence that the mark is distinctive of the goods in relation to which he has used it and that the defendant has passed off other goods under the same or similar mark. His success in such action thus depends upon his ability to establish that the mark of which he claims ownership as a fact distinguishes his goods from the goods of other traders, and that the opponent's mark is such as calculated to lead to such opponent's goods being passed off as his own.
12. In this case, the evidence of P.W. 5 is precise and definite that the labels got printed by the petitioners are false trade marks and that their intention was to pass off the beedies manufactured by them as those manufactured by Kareem Beedi factory. To that extent, the case has been clearly proved. The conviction of the petitioners under Section 79 of the Trade and Merchandise Marks Act is, in the circumstances, unassailable.
13. The convictions are therefore, confirmed and the sentence being only one of fine of Rs. 100 each, does not call for interference. The petition is accordingly dismissed.