B. N. Katju, J. - (1.) VIRENDRA Kumar has filed this appeal against the judgment of Sub-Divisional Magistrate, Nakur dated 21-5-1975 passed in Criminal Case No. 645 of 1974 acquitting Charanjit Lal, Pishori Lal, Karamchand, Bashir Ahmad, Morchand and Kundan Lal Narang under Sec. 78/79 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act).
(2.) THE case of the appellant (complainant! is that he is the proprietor-cum-partner of the registered firm "THE Indian Harbs Research and Supply Company" which manufactures medicines for animals and other articles. One of the medicines manufactured by the firm is a Stomachic Powder and the firm has got the Trade-mark applied to the Stomachic Powder registered under the Act as Himalayan Batisa. THE registration of the Trade-mark, however, did not give the firm the right to the exclusive use of the device of animals and of the word 'Batisa' appearing on the packets and the registration of the aforesaid Trade-mark was without the limitation of colour. THE said medicine of the firm was popular both in India and in other countries and was commonly used in veterinary hospitals. On 10-4-1972 Sarab Lal (P. W. 3) met the appellant and informed him that the quality of the Himalayan Batisa manufactured by his firm had deteriorated. When he asked Sarab Lal to show him the packet, the packet shown to him had Himachal Batisa written on it and on inquiry he was told by Sarab Lal that Charanjit Lal Respondent sold it to him at his shop in Kakkarganj although he had asked him to supply Himalayan Batisa. THE appellant then went to the shop of Charanjit Lal respondent at about 11 A. M. on that day and told him that the packet of Batisa manufactured by him was deceptively similar to the packet of Himalayan Batisa and that he should not have done so. THE appellant was also informed that Himachal Batisa which was deceptively similar to the Himalayan Batisa manufactured by his firm, was being sold in the shops of Pishori Lal, Karamchand, Bashir Ahmad and Morchand respondents and that the packets of Himachal Batisa were printed at the press of Kundan Lal Narang respondent. A complaint was lodged by the appellant in the Court of the City Magistrate, Saharanpur on 25-4-1972 against the respondents under Sec. 78/79 of the Act. The respondents were acquitted by the Sub-Divisional Magistrate, Nakur under Sec. 78/79 of the Act by his judgment dated 21-5-1975. "Mark" has been defined in Sec. 2 (1) (j) of the Act which is as follows .- "Mark" includes a device, brand, heading, label, ticket, name, signature, word, letter or numerical or any combination thereof." "Trade mark" has been defined in Sec. 2(1) (v) of the Act which is as follows :- "trade mark" means- (i) in relation to Chapter X (other than Sec. 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 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." "Deceptively similar" has been defined in Sec. 2(1) (d) of the Act which is as follows :- "deceptively similar"-A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion." Section 77 (1) (a) of the Act is as follows :- "Falsifying or falsely applying trade marks-(l) A person shall be deemed to falsify a trade mark who, either- (a) without the assent of the proprietor of the trade mark makes that trade mark or a deceptively similar mark."
(3.) IT is clear from a plain reading of Sec. 2 (1) (v) of the Act that for the purpose of Secs. 78 and 79 of the Act which are contained in Chapter X of the Act 'trade mark' means either a registered trade mark or an unregistered mark which is used in relation to the goods for the purpose of indicating or so as to indicate any connection in the course of trade between the goods and some person having the right to use the mark. It is true that Virendra Kumar (P.W.I). Hasan Ahmad (P. W. 2), Sarab Lal (P. W. 3) and Bundu (P. W. 4) deposed in the trial court that the packet of the 'Himachal Batisa' sold by the respondents was deceptively similar to the packet of the 'Himalayan Batisa- manufactured by the firm of the appellant but in the complaint filed by the appellant it was alleged that the respondents were manufacturing and selling 'Batisa' with a false trade mark applied to it which was deceptively similar to his registered trade mark and not to his unregistered mark. In the charge framed by the trial court also it was mentioned that the respondents manufactured and sold 'Batisa' with a trade mark applied to it which was deceptively similar to the registered trade mark of the appellant and not to his unregistered mark. In the questions put to the respondents under Sec. 342 CrPC it was also mentioned that the respondents were manufacturing and selling 'Batisa' with a false trade mark applied to it which was deceptively similar to the registered trade mark of the appellant and not to his unregistered mark. It is, therefore, to be determined whether the trade mark applied to the 'Batisa' manufactured and sold by the respondents was deceptively similar to the registered trade mark of the appellant and not that it was deceptively similar to his unregistered mark as defined in Sec 2 (1) (j) of the Act.;