1. The accused Gobinda Chandra Roy has been convicted in this case by an Honorary Presidency Magistrate under the provisions of Sections 482 and 486, I.P.C. The conviction took place on the 31st August of last year and the accused was sentenced to pay a fine of Es 50 in respect of the conviction under Section 486 and to pay a similar fine for the offence under Section 482. It appears that since the year 1918, or 1920 as the petitioner alleges, the complainant Abdul Rashid has sold on the market in Calcutta soap on which appears on the front a picture of Mr. Gandhi, at the top of which picture appears the word 'Mahatma' and at its foot the word 'Gandhi.' On the back appear the letters 'A.R.M. Ishaq' and the words 'sole agent' and the letters 'A.S.F.' also appear which mean 'American Soap Factory.' The accused has been recently selling on the market soap similar in shape and colour, and bearing on the front a picture of Mr. Gandhi somewhat alike, but not indentical with the picture on the complainant's soap, and beneath the picture appears the name of Mr. Gandhi. On the back are the words 'Indian Soap Company.' Now the learned Magistrate has propounded three questions for consideration. : Firstly, 'Whether the complainant has the exclusive right to the trade mark used on his soaps which formed the subject-matter of the charges.' Secondly 'Has the right of the complainant been infringed by the accused'; thirdly, 'are there circumstances to show that the accused is protected under the exception under Sections 482 and 486'? He has found that the complainant has proved the user of the trade-mark and that soap manufactured by the complainant is known in the bazar as 'Gandhi Brand Soap.' He further found that there waa satisfactory evidence to show that the complainant's 'Gandhi Brand' soap had extensive sales in the market both in Calcutta and in the mofussil, and he further found that, having regard to the warning given to the accused and to this continuance of sales after such warnings, he did not act innocently and that he was not protected by the exception. First of all, we have to see, before considering the sections themselves, what is the evidence which was before the Magistrate upon which he convicted the accused. There was a considerable volume of evidence to show that the complainant made extensive sale3 of the Gandhi mark soap in the markets. Abdul Rashid himself says that his factory was established in about 1918 and that his Gandhi mark soap had extensive sales in the markets in Calcutta and in the mofussils. The witness Abdul Samad stated that the Gandhi mark soaps had extensive sales. Witness Abdul Latiff stated that he used to purchase 50 or 60 cases of Gandhi mark soaps daily and to the value of Rs. 7,000 or Rs. 8,000 a year. He does not specifically state that his purchases were from the complainant, but I think that there is no doubt that this is what he meant. Abdul Majid stated that Gandhi brand soap belonged to the complainant's factory and that from last year he had purchased such soaps from the complainant's factory. Abdul Aziz stated that since 1327 he had been buying Gandhi brand soap from the complainant's factory and that he had been making large purchases of such soaps. Witness Mofizuddin stated that in the market Gandhi brand soap was known as the complainant's brand.
2. It seems to me that this evidence is not sufficient to establish what it is necessary for the complainant to establish having regard to the provisions of Section 478. Under that section he has to prove that the goods which are the subject of the mark are manufactured and sold by himself and that such goods are known in the market as being of his manufacture alone, and it seems to me that the evidence to which we have referred is not sufficient to support the claim put forward on the complainant's behalf, namely, that in the market Gandhi brand soap is known as being of his manufacture and of his manufacture alone. But when we consider the evidence given on behalf of the accused the complainant's evidence is of very little value. Witness Jogesh Chandra Ghosh who was called on behalf of the accused, stated that since the year 1918 the National Soap Factory Company had been making and selling Gandhi brand soap in considerable quantity, and this is supported by the evidence of Ershad Ali Mallick who stated that his firm had been publicly selling Gandhi brand soap in the bazar for more than a year. Witness Eoza Meah stated that Gandhi mark soap had been on the market for years and that he had been selling the accused's Gandhi brand soap for about four years. The evidence of Prosanno Kumar Dutta is to the same effect and so is that of Santosh Kumar Das Biswas. Lastly, witnesses Jogendra and Pran Bandhu stated that by Gandhi brand soap no soap of any particular company is meant. We think, having regard to the evidence put forward for the prosecution and the evidence put forward for the accused that it has not been sufficiently or satisfactorily established that Gandhi brand soap is generally known in the market as soap manufactured by the complainant. We think that there is abundant evidence that there have been sales of Gandhi brand soap by the National Soap Factory and others for a considerable period, and we do not think that the reputation established by the complainant according to the evidence would justify a conviction under Sections 482 and 486. This, we think, is sufficient to dispose of this matter because the conclusion that we have come to upon the evidence is that the complainant has not proved that he has established in the market such a reputation as to justify him in claiming for his soap, exclusive use of Gandhi's portrait as a trade-mark in respect of his soap.
3. It is not necessary to refer to several other matters that were urged before us on behalf of the petitioner, namely, the fact that the declaration made on behalf of the National Soap Factory in respect of their Gandhi mark soap was made some three weeks prior to the declaration made on behalf of the complainant, nor I think is it necessary to deal with what is stated to be a wrong conclusion by the Magistrate, that the complainant started making soaps in the year 1918, nor to the mistake which the Magistrate has made with regard to Ex. (8) which he states is the complainant's stock-book whereas it is evidently the stock-book of the accused.
4. The result is that we do not think that there was before the Magistrate sufficient evidence to justify him in finding that the complainant's soaps were entitled to the exclusive user of the portrait of Mr. Gandhi or sufficient evidence to show that the soap bearing that impression was known in the market as the soap of the complainant and of no other maker. There is abundant evidence, we think, that the use of the Gandhi's portrait upon the soap has been common for four or five years in the bazaar and that no manufacturer has established any exclusive rights of user of the Gandhi's portrait or name in respect of soap.
5. Having regard to the conclusion at which we have arrived the conviction is clearly bad and must be set aside, and we accordingly make the Rule absolute and direct that the fines, if paid, will be refunded.