Nilmoney Nag and Vs. Durga Pado Banerjee - Court Judgment

Excerpt:
penal code (act xlv of 1860), sections 178 and 486, scope of - 'trade-mark,' counterfeited--intention to deceive--'counterfeit', meaning of. - 1. these are two rules issued at the instance of the two accused, jatindra mohan pal and nilmoney nag, on the ground that the facts found do not constitute an offence under section 486, indian penal code. nilmoney nag was charged with selling goods bearing a counterfeit trade-mark and jatindra mohan pal was charged with abetment of the offence. the matter has been fully argued before us, and we are of opinion that the petitioner's acts bring them within the purview of section 486. the trade-mark said to be counterfeited is that of f.c. calvert and co., manufacturers of carbolic tooth powder. the expression 'trade-mark' as defined in section 478 must not be confined to the trade-mark of the complainants registered in england, but must include the whole design on the top of the box and the black label pasted round the side. for the name f.c. calvert has been substituted the name of paul, and for the registered trade-mark, which consists of four arrows in a circle, has been substituted the word 'dantina'. but apart from these two points of difference the imitation of the whole design is most marked and complete. it clearly comes within the definition of 'counterfeit' in section 28. there is no doubt that the intention was to deceive and the petitioners have failed to bring themselves within the exceptions in section 486. the same view seems to have been taken by the bombay high court. the rules are discharged.