LexSUMAT PRASAD JAIN versus SHEOJANAM PRASAD (DEAD) & ORS
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1050
SUMAT PRASAD JAIN
:\
~
v.
SHEOJANAM PRASAD (DEAD) & ORS
August 29, 1972
[J. M. SHELAT, Acting C.J. D. G. PALEKAR
AND S. N. DWIVEDI, JJ.]
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Appellant selling his products in tht: name of another-Product! not
r·
regiattrtd under Trade Mark!.' Act-Wirttlrer appellant violated "property
mark of the Rtspondent-Trctdc mark &: property mark distinguished.
S. the respondent, who died during the pendency of the appeal before
the High Court, evolved a formula manufacturing a scent, 'Basant Babar',
which became very popular. S,
applied for registration of the Trade
("
M:uk, but the application
was not
granted due to certain
technical
f.
defect~.
The appellant had also put up for sale a scent prepareJ by him and
~ve it the name of, 'Pushp Raj' Scent. This scent, however, did not become
popular. So, he started putting up for sale his said scent under the name
of Basant Bahar in receptacles, similar to thooe of the Respondent, except the
name of the manufacturer.
D
J •••
The Trial Court convicted the Appellant under s. 482 and s. 486 I.P.C.
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and imposed a fine of Rs. 250. on each of the two counts. On appeal, the
Add!. Session Judge set aside the said order of conviction and sentence. Th~
complainant filed an appeal in the High Court. Pending the appeal, the com-
plainant died. The High Court however, allowed the appeal on the ground
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that though in the complaint, the Complainant has use<: expressions, such as,
Trade Maork, counterfeiting his Trade Mark etc, in substance the complainant
averred counterfeiting of "property mark" and accordingly set aside the
order of acquittal
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On appeal to this Court, the counsel for the appellant challenged the
correctness of the view taken by the High Court.
Dismissing the appeal,
HELD : (i) The concept of Trade Mark is distinct from that of 1t pro-
F.
perty mark .. A Tr&:le Mark means a mark used in relation to goods 'for the
purpose of indicating a connection in the course of trade between the goods
and some person having the right as proPrietor to use that mark. The func·
. ~
~==·=
tion of a Trade Mark is to give an indication to the purchaser as to the
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ma11ufacuture or quality of the goods, to give an indication to his eye of the
trade source from which the goods come or the trade hands through which
they passed on their way to the market. [1055F}
G
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In re Powell's Trade Mark (1893) 10 R.P.C. 200, referred to.
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On <he other hand, a property mark, 1893 defined by S.479 of the Penal
Code, means a mark used for denoting that a moveable property belonp to
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a particular person. Thus, the distinction between a Trade Mark and a
property mark is that whereas the former denotes the
manufacture or
quality of the goods to which it is attached, the latter denotes the owner-
sh'o in them. In other words a Trade Ma-rk concerns the goods themselves,
H
while a prooerty mark concerns the proprietor. A property mark atta::hed
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to the movable property of a person remains even if part of such pro-
perty goes out of his hands and ceases to be his. [1055 H]
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s. P. JAIN v. S. PRASAD (Dead) (She/at Ac(
. • -- ----'"-
,
mgc.J.)
1os1
(J..n Emperor v. Dhyabhai Cltakasha 1904
'
6 Bom LR S
(ii) To succeed .on the charge under 5
•
· • 13 referred to)
lain~ot had to establish that the appellant
· 482 and s. 486 th
and sold by him or the pack~ts and reccptact~ked· ~h~ SO!nt rnanu~a~~liD:>
actets or receptacles beanng that mark an~ cont:un1ng such ~nt 0 t=
~culatcd to cause it to be believed that th that he d1d so in a m'"annc
c;ontain&d in t}'e packets so marked belong~}~d~· so marketed or seen~
B tht purpose OL s.486, he had further to c:stabli·h nc cornpla·mant. For
;old or exposed for sale or had in h:S posses . '
that the appeUant had
a mark calculated to cause it to be believed t~
1~
0 for sale, good.\ having
m.anuracturcd by and belonging to the compl ~ the ~nt, Wa.\ the scent
amant. [1056 F]
(iii) Jn the prest;nt. case, the name 'Baranr Bahar .
. .
ture the same mscnpttons, and the same receptacl
wtth the same pte-
mark' denoting that the scent in quc:stion wa, the ~· wa~ ~c 'property
C belonging to the complainant. From the finding arn~e::~u bactured ~d
Court, it must 'follow that the appellant marked his scc·t ar.d thr thek 1,n~l
which it was packed ':"'ith ~he same name, the same pictu~e an/~ c
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