1960 Present  : T. S. Fernando, J.

K. THIYAGARAJAH, Appellant, and D. M. R. PERERA
(Inspector of Police), Respondent

S. C. 58-M. C. Colombo, 20311/B

    Merchandise Marks Ordinance (Cap. 122)-Offence as to trade description-Section 2 (2)-" False trade description "-" Acted innocently".

The appellant was carrying on the business of manufacturing aerated waters under the name of "Dominion Aerated Water Company". He was in the habit of purchasing in the open market empty aerated water bottles which had once been the property of the" Ceylon Mineral Waters Company", with the name of that company embossed on them. He filled such bottles with aerated waters other than those of the Ceylon Mineral Waters Company, and then, having placed his own company's labels upon them, sold them as being his company's drinks.

Held, that a false trade description within the meaning of section 2 (2) of the Merchandise Marks Ordinance had been applied to the drinks sold by Dominion Aerated Water Company none the less because the presence of the labels would prevent any reasonable purchaser from supposing that he was buying anything but the drinks of Dominion Aerated Water Company.

APPEAL from a judgment of the Magistrate's Court, Colombo.

G. E. Chitty, Q.C., with Ananda Karunatilak's and Hannan Ismail, for the accused-appellant.

Wakeley Paul, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

September 5, 1960. T. S. FERNANDO, J.-

The appellant was convicted in the Magistrate's Court on the two. charges which are reproduced below:-

(1) That he did on 24th June 1959 at Rodney Street, Borella, have in his possession for sale or for any purpose of trade goods, to wit, 119 bottles of aerated waters to which a false trade description, namely, the words "MANUFACTURED UNDER THE AUTHORITY OF THE PROPRIETORS SCHWEPPES (OVERSEAS) LONDON, ENGLAND" and "SCHWEPPES" had been applied, and thereby committed an offence in breach of section 2 (2) of the Merchandise Marks Ordinance (Cap. 122), punishable under section 2 (4) of the same Ordinance.

(2) That he did at the time and place aforesaid have in his possession for sale or for any purpose of trade goods, to wit, 56 bottles of aerated waters to which a false trade description namely, "CEYLON MINERAL WATERS" and" THIS BOTTLE IS THE PROPERTY OF CEYLON MINERAL WATERS LIMITED" had been applied, and thereby committed an offence in breach of section 2 (2) of the Merchandise Marks Ordinance (Cap. 122), punishable under section 2 (4) of the same Ordinance.

Another person, a servant of the appellant, was charged along with him and convicted in respect of the sale of 3 bottles of aerated waters of the kind described in charge (1) above and of 3 bottles of the kind described in charge (2) above. The servant was fined a sum of Rs. 20 in respect of each charge, while the appellant was fined a sum 6f Rs. 75 also in respect of each charge.

Section 2 (2) of the Merchandise Marks Ordinance enacts that every person who sells or exposes for, or has in his possession for, sale or any purpose of trade or manufacture, any goods or things to which any forged trade mark or false trade description is applied, or to which any trade mark or mark so nearly resembling a trade mark as to be calculated to  deceive is falsely applied, as the case may be, shall, unless he proves

       (a). . . .

and (b). . . .

or (c) that otherwise he had acted innocently, be guilty of an offence against this Ordinance.

The question raised in this court on behalf of the appellant is one of law, but before dealing with that question it is necessary to state the facts as found in the court below.

The appellant carries on at 20/1 Rodney Street, Borella, the business of manufacturing aerated waters, mineral waters, fruit drinks and cordials under the name of Dominion Aerated Water Co., a name duly

registered as required by the Business Name  Ordinance (Cap. 120). .on