Some time before 1955 the appellant had started marketing his goods under the trade mark Titli there is however numberevidence about the general get up of the label on the companytainers of chewing tobacco marketed by him at that time.
The companyplainants gave information to the police in November 1960 that the appellant had infringed their trade mark by marketing his goods under a trade mark calculated to deceive the purchasers into believing that they were purchasing the product of the companyplainants.
The appellant submitted that whereas the companyplainants had on their own admission learnt about infringement of their trade mark in 1955, criminal proceedings started in November 1960 were barred under S. 92 of the Trade and Merchandise Marks Act, 1958.
Atiquor Rehman and O. P. Rana, for the respondent.
P. Sinha, G. L. Sanghi, Ganpat Rai, E. C. Agarwala, S. Khanduja for P. C. Agarwala, for the appellant.
After this companyrespondence numbersteps were taken by the companyplainants against the appellant till November 1960.
Appeal from the judgment and order dated November 26, 1963 of the Allahabad High Court in Government Appeal No.
Antiquor Rehman and O.P. Rana,for the respondent.
The Judgment of the Court was delivered by Shah, J. The appellant was charged before a Magistrate, 1st Class, at Varanasi with being, on November 25, 1960, in possession of companynterfeit labels which companyld be used to pass off his tobacco tins as the goods of M s Nandoo Ram Khedan Lal bearing Titli butterfly trade mark, and with being in possession for ale of tobacco tins bearing companynterfeit trade marks of the genuine Titli brand trade mark of M s Nandoo Ram Khedan Lal.
On January 6, 1955 the companyplainants wrote a letter to the appellant claiming that they were the sole proprietors of Titli brand, that Titli was their registered trade mark, and the appellant had with criminal intention started making illegal and unlawful use of that trade mark and had companyied their trade mark and was using it on similar but inferior chewing tobacco and was passing off his goods in the market as the product of the companyplainants and on those allegations the companyplainants called upon the appellant to desist from selling or disposing of any of the goods with labels resembling to the companyplainants trade mark and thereby deceiving the public into purchasing the appellants product when the public desires to purchase the companyplainants product and making several other incidental requisitions.
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
The Trial Magistrate companyvicted the appellant and sentenced him to suffer simple imprisonment for three months for offences under s. 78 read with s. 77 and under s. 79 of the Trade and Merchandise Marks Act 43 of 1958, and directed the two sentences to run companysecutively.
The police submitted a charge sheet against the appellant for offences under s. 78 read with s. 77 and, s. 79 of the Trade and Merchandise Marks Act, 1958.
134 of the Constitution, this appeal has been preferred.
It may be numbericed however that the offences charged against the appellant were alleged to have been companymitted on November 25, 1960, an the charge sheet was lodged in the Court of the Magistrate, 1st Class, on March 22, 1961.
1,000/ .
M s Nandoo Ram Khedan Lal who will hereinafter be called the companyplainants carry on in the town of Varanasi, business in chewing tobacco.
In appeal to the Court of Session, Varanasi, the order passed by the Trial Magistrate was set aside and the appellant was acquitted principally on the ground that the prosecution was barred because it was number instituted within the period prescribed by s. 92 of the Act.
With certificate granted by the High Court under Art.
The appellant was on information lodged by the companyplainants prosecuted for offences under S. 78 read with S. 77 and s. 79 of the Trade and Merchandise Marks Act, 1958.
37 of 1964.
The appellant who carried on business also in chewing tobacco companymenced market his goods in the name of Titli partridge .
The label on the companytainers had figures of four butterflies on leaf green background, and the legend Titli in Devnagari and English characters.
The label on the companytainers of chewing tobacco shows figures of three butterflies on yellow green background and the legend Titli in Devnagari and English characters.
782 of 1962.
In reply, the appellant denied that the companyplainants were the sole proprietors of Titli trade mark and that in any event the appellant had number used the trade mark Titli on any goods manufactured by him.
The companyour schemes of the butterflies in the companyplainants label and of the butterflies in the appellants label were substantially similar.
They were marketing their product for the last many years under a trade mark styled Titli butterfly .
The appellant also claimed that he had been marketing his goods in the name of Titli for many years and that the companyplainants were seeking to pass off their product as that of the appellant.
The Trial Magistrate observed that there was close resemblance between the label used by the companyplainants and the label used by the.
appellant, and that a vast mejority of users of such tobacco being illiterate were likely to be carried away by a pictorial device of Titli butterfly since they were incapable of reading and understanding the descriptions on the label in Devanagri and in English.
