State of M.P. Vs. Harnarayanan.

.....with other marks such as meredian, merelane delux and merelane premium. see also, fuentes trade marks (1891, 2 ch.,166)." the above observations establish that it is a defence even to an action for passing off or infringement of a trade mark that the plaintiffs (in this case the respondents) marks are an imitation of the mark of another to wit that the respondents had themselves infringed the mark of another. it is thus clear that the principle was applied to an action for infringement of trade mark and passing off. if the purchasers were in such a case to stamp their goods with the trade mark, "a.b. the basis of the ratio is to deny an infringer a right based on the mark or work which infringes the mark or work of another. the respondents in their affidavit in rejoinder denied the allegations that they had infringed the mark of state express 555. there are no averments, much less is there any evidence, to indicate that the respondents' marks/cartons/labels are an imitation of the mark state express 555. it is significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the court to come to the conclusion that the respondents had infringed the mark. if it is established that the mark is a well known mark, the mark being used in respect of different goods may make no difference. firstly, whether the principle would apply even if the mark is not established to be a well known mark. secondly, whether the principle would apply if such a mark i.e. not a well known mark, infringed by the respondents is applied to different goods. the goods need not be identical even if a well known mark is not involved. .....appreciating the evidence on record, recorded the finding that on the date on which the incident had taken place, the respondent was absent on duty, as already transferred. it has further been held that the prosecution is not able to prove the fact that the wood was stored in the londha depot. the trial court has also recorded the finding as per the evidence on record that the wood was stored in the field of naththu birkhade who was having supurdagi of the wood in question. however, the prosecution is unable to establish its case as alleged and to prove the charges. the trial court has also recorded the finding, that possession of the said wood was not found with the respondent, therefore, the ingredients of section 409 and 420, ipc are conspicuously missing and the prosecution is unable to prove the charge as framed by the trial court, accordingly, acquitted the respondent.5. smt. sheetal dubey, learned govt. advocate appearing on behalf of the appellant/state, has made an endeavour to satisfy this court that the findings as recorded by the trial court are unsustainable on facts but she is unable to point out that the said wood was stored in the londha depot from which it was loaded as per the prosecution case. the evidence which is available on record apparently indicate that the alleged wood was in supurdagi of naththu birkhade and stored in his field. no evidence is available to demonstrate the fact that the wood in question was entrusted to the respondent. the finding of the trial court regarding absent on duty, as stated by the prosecution witnesses, is just and proper. in the facts and circumstances, it cannot be presumed that the respondent was assigned to the alleged wood and the possession thereof was found with the respondent. in such circumstances, the finding recorded by the trial court in the impugned judgment to acquit the respondent is not found any fault, and liable to be upheld.6. in view of the foregoing discussion, i do not find any.....