STASSEN EXPORTS LIMITED V. BROOKE BOND GROUP LTD., AND TWO OTHERS

STASSEN EXPORTS LIMITED V. BROOKE BOND GROUP LTD.,
AND TWO OTHERS

SUPREME COURT
DR. SHIRANI A. BANDARANAYAKE, J.
MARSOOF, P. C. J., AND
BALAPATABENDI, J.,
S. C. (CHC) APPEAL NO. 48/1999
H.C. NO. 33/96 (3)
D. C. (COLOMBO) NO. 3411/SPL.
OCTOBER 22ND,2007

High Court of the Provinces (Sp. Pro) Act -10 of 1996 - Section 2 (1), Section 10 - Code of Intellectual Property Act - Sections 130 (1), 130 (2), 172 (2), 172 (4), 174 and 176 - Evidence Ordinance - Sections 31, 61, 64, 65, 74, 77, 76, 167 and 176 - Civil Procedure Code - Section 110 - No belated objections to production of documents. - Best Evidence?

This was an appeal from a decision of the Commercial High Court of Colombo dated 22.10.1999 whereby the learned High Court Judge dismissed the action filed by the plaintiff-appellant seeking to remove from the register maintained by the Registrar of Trade Marks under the now repealed Code of Intellectual Property Act No. 52 of 1979, as subsequently amended, the trade mark bearing No. 12307 registered in the name of the 1"' Defendant - Respondent, Brooke Bond Group Ltd., of Watergate, London, United Kingdom, and currently licensed to the 2nd Defendant - Respondent, Brooke Bond (Ceylon) Pvt. Ltd.

The essence of the dispute was whether the words "Red Label" used with the 'Brooke Bond' trade mark bearing No. 12307 was sufficiently distinctive, so as to prevent the appellant using the words 'Red Medal' with its trade mark bearing No. 53509.

Held

(1) An affidavit tendered in terms of Section 176 of the Code of Intellectual Property Act, is obviously much more than primafacie evidence of the facts adverted therein, and in the absence of any objections to its admission in evidence and directions to the contrary made by Court, it has to be treated as the examinationin - chief of the witness.

(2) As no objection was taken by the 1st defendant - respondent to the affidavit of D.H.S. Jayawardene dated 11.10.1997 which was tendered in evidence under Section 176 of the Intellectual Property Act along with documents marked A1 to A52 they add up to admissions recorded in favour of appellant.

(3) Since the documents marked A1 to A52 had been read in evidence at the close of the appellant's case without any objection from Brooke Bond, they cannot legitimately be objected to thereafter on the next date.

Per Saleem Marsoof, J., -

". . . . . . Jayawardana has in paragraph 1 of his affidavit expressly declared that he deposes to the facts contained therein from his personal knowledge and from documents available to him, copies of which he has produced marked A1 to A52. In his brief crossexamination of Jayawardana, learned Senior Counsel for Brooke Bond made no endeavor to probe the extent of the witness personal knowledge of matters deposed to by him in the affidavit, and the strange proposition that he had absolutely no personal knowledge of any of such matters was never put to him in cross-examination. In these circumstances, I am of the opinion that it is not reasonable to conclude from this cross-examination that Jayawardana had no personal knowledge of the matters he had deposed to in the affidavit, and to refuse to consider the contents thereof in deciding the case at hand. I hold that the learned Commercial High Court Judge had no justification for the rejection of the affidavit in this manner."

(4) Section 3 1 of the Evidence Ordinance which applies to informal or casual admissions, testimony relating to which may be led at the trial, has no relevance to formal or judicial admissions recorded at the trial.

(5) Although according to Section 61 of the Evidence Ordinance, the contents of documents may be proved either by primary or by secondary evidence, it is expressly provided in Section 64 of the Ordinance, that the documents must be proved by primary evidence except in the specific instances provided in Section 65 o

Click Here to Read the rest of this document