Back
High Court Of Delhi
FLOWER TOBACCO COMPANY - Appellant
Versus
STATE OF DELHI - Respondent
CRIMINAL APPEAL 103 of 1986
Decided On : 05/21/1986
TRADE AND MERCHANDISE MARKS ACT, 1958 - SECTION 55 - COPYRIGHT ACT, 1957 - SECTION 66 - CRIMINAL PROCEDURE CODE, 1973 - SECTIONS 451, 457 - SEARCH AND SEIZURE - TRADE MARK - COPYRIGHT - APPLICATION FOR RELEASE OF SEIZED GOODS - OWNERSHIP OF TRADE MARK - USE OF TRADE MARK FOR EXPORT - DISPOSAL OF SEIZED PROPERTY - PERISHABLE GOODS - SALE OF SEIZED GOODS.
Fact of the Case:
The complainant, a manufacturer and seller of tobacco for Hukkah, filed a complaint under Sections 78 and 79 of the Trade and Merchandise Mark Act, 1958 and Sections 63 and 64 of the Copyright (Amendment) Act, against the accused for falsifying its trade mark and infringing its copyright. The complainant also filed an application under Section 93 of the Criminal Procedure Code for issuing a general search warrant for the search of the premises where the offence was being committed and the goods bearing the falsified trade mark were being manufactured, sold, stored and seizure thereof. The Metropolitan Magistrate issued general search warrants and directed an investigation to be made by the police. The accused filed an application under Section 64 (2) of the Copyright Act, 1957 and Sections 451 and 459 of the Criminal Procedure Code for cancelling the order of seizure and allowing the shipment of the goods in question to Jeddah. The Metropolitan Magistrate held that the application was maintainable under Section 457 of the Criminal Procedure Code and directed the release and export of the goods subject to the accused furnishing a bank guarantee.
Finding of the Court:
The High Court held that the complainant was entitled to the protection of its trade mark and to get an order of search and seizure, despite not being the registered owner of the trade mark at the time of the seizure, due to the priority in adoption and use of the trade mark. The Court also held that the seized goods could not be released at that stage as they were required for the trial and releasing them would prejudice the course of justice. The Court further held that allowing the export of the goods would amount to abetting the commission of the offence, as the goods were likely to be spoiled by fungus after the expiry of 30 days and the accused had already kept the goods in India for more than 60 days.
Issues: 1. Whether the complainant was entitled to the protection of its trade mark and to get an order of search and seizure, despite not being the registered owner of the trade mark at the time of the seizure? 2. Whether the seized goods could be released at that stage? 3. Whether allowing the export of the goods would amount to abetting the commission of the offence?
Ratio Decidendi: 1. The Court held that the complainant was entitled to the protection of its trade mark and to get an order of search and seizure, despite not being the registered owner of the trade mark at the time of the seizure, due to the priority in adoption and use of the trade mark. The Court relied on Section 55 of the Trade and Merchandish Marks Act, 1958 which provides that the application in India of trade mark to goods to be exported from India would constitute the use of a trade mark or the purpose of the Trade and Merchar dise Marks Act. 2. The Court held that the seized goods could not be released at that stage as they were required for the trial and releasing them would prejudice the course of justice. The Court relied on Section 66 of the Copyright Act, 1957 which provides that the court trying any offence under this Act, may, whether the alleged offender is convicted or not. order that all copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies, or plates for the purpose of making infringing copies, be delivered upto the owner of the copyright. 3. The Court held that allowing the export of the goods would amount to abetting the commission of the offence, as the goods were likely to be spoiled by fungus after the expiry of 30 days and the accused had already kept the goods in India for more than 60 days.
Final Decision: The High Court accepted the revision petition filed by the complainant, set aside the impugned order and instead dismissed the application of the accused. The Court also dismissed the petition filed by the accused challenging the order of search and seizure and the condition for releasing the goods.
( 1 ) THIS order shall also govern Crl. M (M) 535 of 1986.
( 2 ) THE parties to the dispute-Flower Tabacco Company (hereinafter to be referred as the complainant) and Mottahadesh Brothers (hereiufter to be referred as the accused)-are engaged in ths business of manufacturing and sale of tobacco for Hukkah. The dispute is in respect of a trade mark "abbu DALLA/device of a pot represented in a special and in a particular manner" and copyright in artistic work namely printing on the container used for packing tobacco, with distinctive features of ABBU DALLA having an alleged unique colour combination, lay out and arrangement.
( 3 ) ON February 27, 1986 the complainant filed a complaint under Sections 78 and 79 of the Trade and Merchandise Mark Act, 1958 and Sections 63 and 64 of the Copyright (Amendment) Act, against the accused and unknown persons. The complainant claimed that it bad adopted the said trade mark in the year 1972 in relation to its goods and had used the trade mark continuously and exclusively in the course of its trade. It had extensive sales amounting to nearly Rs. l. 00 crore per annum and had spent substantial amount on the publicity. These goods had acquired reputation for quality in the market. The complainant had exclusive right to use the trade mark and was its proprietor by virtue of priority in adoption and use. It was further alleged that in 1978 it applied for the registration of the said trade mark. The accused filed opposition which was. however, deemed to have been abandoned vide order dated 10th July. 1980 and the complainant was granted registration and its legal right to the exclusive use of the trade mark was recognised. It was next averred that the tobacco was being packed by the complainant in a distinctive container having a unique colour combination lay out and arrangement and its copyright was registered under the Copyright Act under registration No. A-21911/78.
( 4 ) THE complainant complained that the accused had recently started using the mark in dispute in relation to the goods of its manufacture, export and sale. The accused had also reproduced all the distinctive features of the complainant s container so as to come as close as possible in all respects to the original container of the complainant, and had thus falsified the complainant s trade mark and infringed its copyright, wilfully and knowingly in order to deceive the purchasers and to pass off or to enable others to pass off its goods under the falsified trade mark, for the genuine goods of the complainant. It was also alleged that the accused bad despatched a consignment of tobacco under the falsified trade mark packed in the infringing containers for export to Saudi Arabia and the said consignment was lying at the Dry Port of Delhi at Exhibition Grounds, Pragati Maidan, New Delhi.
( 5 ) ALONG with the complaint the complainant filed an application under Section 93 of the Criminal Procedure Code for issuing a general search warrant for the search of the premises where the offence is being committed and the goods bearing the falsified trade mark were being manufactured, sold, stored and seizure thereof.
( 6 ) LEARNED Metropolitan Magistrate examined the partner of the complainant firm. On examining the case be issued general search warrants with directions to search the premises where the goods with falsified trade mark were stored and manufactured and to seize the same.
( 7 ) SO far as the complaint was concerned, he postponed the issue of the process against the accused and directed an investigation to be made by the police, with further direction to submit the report by May 26, 1986.
( 8 ) ON March 3. 1986 the accused moved an application under Section 64 (2) of the Copyright Act, 1957 and Sections 451 and 459 of the Criminal Procedure Code for cancelling the order of seizure and allowing the shipment of the goods in question to Jeddah. The case set up in the application was that in the year 1979 it brought out
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
