1. Lakhan Chandra Bysack and Benode Behari Bysack were, on the 18th September last found guilty by an Honorary Presidency Magistrate of offences under Sections 482 and 483 of the Indian Penal Code and sentenced, each of them, to pay a fine of Rs. 50 in respect of the offence under the first section and to pay a fine of Rs. 75 in respect of the offence under the second section. The accused Benode was also convicted of an offence under Section 486 and sentenced to pay a fine of Rs. 50; Lakhan was acquitted of the offence with which he was charged under Section 486.
2. The Rule was granted on the 27th September at the instance of the accused on the 16 grounds set out in the petition and on the 11th October, the Rule was directed to be served upon the complainant. The complainant and his brother carry on business in Calcutta as dealers in umbrellas and umbrella covers; their firm is known as Tinkori Dulal Chand Basak. The accused were charged with having used a false trade mark on umbrella covers, with having counterfeited the complainant's trade mark and with having sold umbrella covers bearing counterfeit mark.
3. The complainant's mark is an elephant in a circle looking to the left with a mahout on his back bearing an umbrella. Inside the circle appear the words Registered No. Trade Mark, Waterproof No. 1. Outside the circle at the top in a scroll is the name of the complainant's firm in Bengalee and outside the circle at the foot in a scroll is the address of the complainant's firm.
4. The mark complained of is practically identical except that the elephant faces to the right and outside the circle at the top and at the foot appear in Bengalee the name and address of the firm of the accused.
5. It is in evidence that until recently the accused used on the umbrella covers sold by them an elephant in a triangle, with a howdah and beneath the elephant the words trade mark. Bound the triangle appeared their name and address in English.
6. The Magistrate in a careful and exhaustive judgment has arrived at the following findings:
(1) I find from the evidence before me that this mark (the complainant's mark) has been used by the complainant's firm for the last six years and that umbrella covers bearing this mark have acquired a reputation in the market and command a largo sale and that the mark has come to be regarded by customers as distinctive of the complainant's goods.'
(2) ' The mark (complainant's mark) has been used by the complainant's firm for the last six years or thereabouts on their umbrella covers for denoting that the goods or the manufacture or merchandise of the complainant's firm and is their distinctive trade mark within the meaning of Section 478, Indian Penal Code.'
He states that evidence has been given on behalf of the prosecution as to the similarity of the two designs (that is?, the complainant's and the accused's) being likely to deceive casual customers of the class to whom these particular goods are sold and he is of opinion on such evidence corroborated by a comparison of two marks, that such deception would be liable and very likely to occur, at all events with the ordinary class of consumers, and he records this further finding.
(3) ' I hold that the accused have marked their own umbrella Covers Exhibits II, III, V and VI none of which is the manufacture or merchandise of the complainant's firm with a mark thereon in a manner reasonably calculated to cause it to be believed that the goods so marked are the manufacture or merchandise of the complainant's firm and have thus used a false trade mark within the meaning of Section 480, Indian Penal Code.' And again after stating that the accused have their shop close to that of the complainant and were all aware of the complainant's mark and that it had acquired a reputation in the market he finds:
(4) ' The great similarity between the two marks shows that the imitation was intentional and made with intent to practise deception and knowing it to be likely that deception would be practised. I hold that the accused have counterfeited the trade mark of the complainant within the meaning of Section 483, Indian Penal Code.
7. The following points were urged on behalf of the accused:
(1) That the complainant had no trade mark;
(2) that there can be no trade mark, in the figure of an elephant for an umbrella cover;
(3) that anyone can use the mark of an elephant in a circle;
(4) that the mark of the accused was not a counterfeit and would not deceive and that there was no evidence of deception.
8. In view of the findings above referred to, it is necessary to see if the evidence supports these findings.
9. P.W. No. 1, the complainant, proves the sale of umbrella covers with the mark of an elephant in a circle for six years, sales amounting to Rs. 50,000 to Rs. 60,000 annually. He stated that customers in giving their orders stated that the goods wanted were ' Gole Hati marks' and ha produced three such orders.
10. P.W. No. 6, Mohan Lal Bagis, a dealer in umbrellas both wholesale and retail, stated that he had seen the complainant selling goods with their mark for tea or twelve years and that mark was known as ' Gole Hati Mark ' and also as ' Harin.'
11. P.W. No. 7, Akhoy Kumar By-sack, a dealer in miscellaneous goods in Pabna town, who also sells umbrella (cloth, stated that goods bearing the Gole Hati mark had a large sale and that he bought umbrella cloth of this mark from the complainant's firm.
12. P.W. No. 8, Tarak Nath Dhar, collecting clerk of a firm who deal in umbrella covers, stated that the complainant's mark was known in the market as Gole Hati mark and that goods wore sold in the market under this mark, the sale of goods bearing this mark being extensive in the market. This witness, in cross-examination, admitted that he had nothing to do with buying and selling umbrella covers and that he had never effected sales or purchases said that he sometimes wrote up the complainant's firm book and that he also wrote slips for them and that he borrowed money from them and that money was clue to them from him.
13. P.W. No. 9, Radha Ballav Bysack, a dealar in umbrella cloth, stated that the complainant's mark was known in the market us (Sole Hati mark and that goods ho marked had a large sale in the markut and that the firm of the complainant had been using the mark for eight to ten years.
14. P.W. No. 10, Jitendra Nath Das, an employee at a shop which sells umbrellas, stated that goods, bearing marks were sold by the names of the persons by whom they are sold and that the complainant's goods were sold as Hati mark of Tinkari Doolal Chand. In cross-examination he stated that the complainant sometimes came to the shop where the witness was employed.
15. P.W. No. 11, Abani Kanto Ray, proved the purchase of Exhibit No. 6 from accused No. 2 and stated that he asked for an umbrella cover with Gole Hati mark. In cross-examination he admitted being given a memo, at the time of his purchase which had only the word hati.
16. P.W. No. 12, Doolal Chand Bysack, the complainant's partner, stated that their mark was well known in the market. in cross-examination he admitted that there were other Hati marks in the market which are exhibited. It is true that some of these marks have an elephant in a circle, but they are I think quite different from the complainant's mark:
17. P.W. No. 13, Satish Chandra Bhattacharjee, a school master and dealer in umbrella covers in his native village, stated that he bought umbrella covers from the complainant and that he knew their mark as Gole Hati mark. In cross-examination he stated that he bought only from the complainant.
18. P.W. No. 14, Jyotish Chandra Bysack, an employee in an umbrella shop, stated that he knew the complainant's mark as Gole Hati mark and that their buyers asked for these covers as Gole Hati mark covers.
19. P.W. No. 15, Noorar Jama, an employee in an umbrella business at Pabna, stated that this firm bought umbrella covers from the complainant and that they sold these covers under the description of Gole Hati mark.
20. The accused Lakhan Chandra Bysack, denied copying the mark of the complainant and stated that there were several marks of this kind in the market and gave instances. He stated that goods so marked were sold by the seller's name and the other accused made a similar statement.
21. As a result of perusing the evidence, I think that there is evidence to support the Magistrate's findings and to justify the conviction. There is, it is true no evidence of any person being actually deceived, but I do not think that this is necessary for a conviction. There is the evidence that the mark used by the accused was likely to deceive and I think from a comparison of the two marks that this is clearly so. The complainant has established the use of his mark in the market for six years and I feel no doubt that such a mark can become a trade-mark within the meaning of the section. It is significant that the accused should, after using another mark, suddenly use the mark complained of, and although there are in the market several marks of elephants in circles they are quite dissimilar to the complainant's mark and would not deceive anyone.
22. I think the conviction was correct and I would discharge the rule.
23. I agree.