P L D 1969 Supreme Court 477 (PLP)

Leave to appeal was granted on the 6th of August 1963, to consider the peas that the evidence produced by the respondent contained discrepancies not noticed in the Courts below and the as there was no sale by the respondent since 1949 the possibility of 'confusion' and `deception' contemplated in section 8 of the Trade Marks Act did not exist. We have examined the evidence relied upon by the Deputy Registrar in support of his conclusions that respondent No. I had discharged the onus of establishing the reputation of his mark and found that it was neither properly brought on the record nor was its authenticity free from doubt. There are also material discrepancies in the evidence not noticed by the Courts below. An objection was taken before the High Court about the admissibility of the evidence on behalf of the appellant, but the learned Judges rejected it on the view that being related to mode of proof, it ought to have been raised before the Deputy Registrar. Mr. Israrul Hossain pointed out that 17 sheets Exh. G.B. 3 series containing the names of the consignees between 1942‑58 and the names of the steamer stations to which the goods were booked were not true copies of the entries in the original registers. The entries were also‑not made contemporaneously with the tran sactions in the account books as indicated by the incorrect choronological order in which the entries appear in the original register. Also there are entries of sales in East Pakistan during 1952‑58 when there was admittedly a total ban by the Government of India on export of coaltar to East Pakistan. No export permits were produced covering the alleged sales for this period, nor was any supporting evidence brought on record, such as, cash books, cash memos., shipping documents showing the actual booking to the consignees entered in Exh. G.B. 3 series. The account books mentioned in the affidavit of the respondent are also of scrappy nature, for instance, sales spreading over a period of ten years are entered in a register containing 40 leaves which is not in consonance with the normal method of accounting. The appellant contested the correctness of the entries in G.B. 3 series and our attention was drawn in this respect to the two affidavits filed by the respondent and the affidavit of Armand Mohan Roy. In paragraph 15 of the affidavit sworn by the respondent before a Magistrate on 25‑8‑1958 it is stated "He (appellant) adopted my mark purposely with an intention to divert trade and customers sometimes during 1952 to 1958 when there was a total ban for export of coaltar from India." Again in the affidavit 'sworn by the respondent on 17‑1‑1959 before a Magistrate in Calcutta it is said in para. 5 " ..I say that the applicant never sold Jahaj Marka Alkatra in Pakistan or at nine other places prior to the periods; of restriction". In the affidavit sworn by Anand Mohan Roy on 21‑4‑1959 before a local Magistrate at Dacca it is stated in paras. 4 and 5: "

4. That due to partial restrictions during the years 1949 to 1952, 1 received supply of "Jahaj Marka Alkatra" of the above concern from India scantily and irregularly.

5. That in the years 1952 to 1955 on account of total restric tion I did not receive any supply of coaltar from the said Gour Benode Saba & Company." Yet in the seventeen sheets G.B. 3 series sales to customers in Fast Pakistan are recorded during the period 1952 to 1955 which are not covered by the export licences Exhs. G.B. 7 (1), G.B. 7(2), and G.B. 7 (3). Thus, there was intrinsic evidence of the falsity of the entries of sale of goods in East Pakistan mentioned in Exh. G.B. 3 series. Besides the authenticity of the account books relied upon by the respondent that were not properly brought on record as evidence of the transactions mentioned therein. The learned Chief Justice in the High Court ruled out the objection raised by the appellant on the view that it related to mode of proof of the entries in the account books and was not raised before the Deputy Registrar of Trade Marks. It was omitted from considera tion that under section 34 of the Evidence Act entries in books of account regularly kept in the course of business are only declared to be relevant whenever they refer to a matter into which the Court has to enquire. But this does not dispense with the requirement of section 67, that if a document is alleged to have been written by any person, the signature or the hand writing of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Mere production of account books kept in regular course of business, therefore, does not constitute evidence of entries contained therein. The Legislature has made an exception in this behalf in the Bankers' Books Evidence Act. Section 4 provides as follows: "Subject to the provisions of this Act, a certified copy of any entry in a banker's book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise." In the absence of such a provision in the Evidence Act regarding entries in books of account kept in regular course of business 8 the mere production of the account books does not constitute evidence of the transaction and accounts therein recorded. Mr. Israrul Hossain further pointed out that the account books containing Exh. G.B. 3 series were not even exhibited by the Deputy Registrar. In the affidavit of the respondent sworn on the 25th August 1958, in paragraph the genuineness of the records, Exhs. G.B. 1 to G.B. 10, is affirmed, but this bald statement did not constitute proof of the entries in these series unless they were in his handwriting and he swore to the correctness of the transactions mentioned therein. The documents Exhs. G. B. 3 series relied upon by the respondent No. 1 in support of his claim that since 1937 he had been selling on large scale in Bengal and Assam including the riverine districts now constitut ing East Pakistan coaltar bearing trade mark "Jahaj Marka Al‑katra" with a device of a ship were in this view wrongly treated as evidence by the Courts below. The above criticism of, Exh. G.B. 3 series and the supporting account books apply to the remaining series of documents produced by the respondent. Exh. G. B. (1) is copy of a judgment in Criminal Revision Case No. 886 of 1941 of the Calcutta High Court ; Exh. G.B. (2) is copy of the complaint filed in that case by respondent No. 1 in the Court of the Additional Chief Presidency Magistrate, Calcutta, under sections 482, 483, 485 and 486,

1. P. C., against Sitaram and others for infringement of trade mark. Exh. G.B. 2 (2) is an extract from the Registrar of Miscellaneous Cases maintained in the Court of the Third Presidency Magistrate, Calcutta, pertaining to the said criminal complaint. These copies, however, do not bear certificate of genuineness and accuracy by a representative of the Government of Pakistan in India as required by section 86 of the Evidence Act. Consequently they were inadmissible as evidence of the c facts recited therein. Copies of application for export of coaltar to East Pakistan in 1948 and licenses for export purporting to have been granted by the Government of India as well as two telegrams received by respondent No. 1 from some customers in East Pakistan, Exh. G.B. (6), Exh. G.B. (7) and Exh. G.B. (9) series stand at a still lower footing as they are not copies of any judicial record and could not be received in evidence without proof of signature and handwriting of persons alleged to D have signed or written them as required by section 6 7 of the Evidence Act. Lastly, there is the letter dated 'the 15th July 1955, Exh. G.B. 5(3) written by one Suresh Chandra Podder. It was produced to show that the goods of respondent No. 1 were being sold in East Pakistan in the year 1955. On the contrary the letter gives away the whole case of the respondent that his mark had established a reputation in East Pakistan by sales on a large scale of goods since 1937. The concluding paragraph of the letter is to the following effect "No body can expect such behaviour from you from the nature of the consignment that has reached at Khulna, it is beyond imagination. The parties would not have suffered such a heavy loss if you would have paid a little attention towards the weightage of the consignments so despatched. Besides one or two tins not a single tin had been sold. We informed you in all its particular details now do the needful." In this context Mr. Israrul Hossain produced a chart prepared from the account books of respondent No. 1 which is quite i4formative. The highest sale of 9111 tins of Jahaj Marka Al‑katra in undivided India was in 1942, In the succeeding years the sales decreased as follows: 1943 ... 209 1944 ... Nil 1945 ... Nil 1946 ... 728 1947 ... Nil 1948 ... 165 1949 ... 150 1950 ... Nil 1951 ... 1392 1952 ... Nil As the trade mark of respondent No. 1 was not registered he could successfully oppose the application moved by the appellant for registration of his mark only by showing that it was likely to deceive or to cause confusion or otherwise be disentitled to protection in a Court of justice as laid down in clause (a) of section

8. Such a conclusion could be reached only if respondent No. 1 bad succeeded in establishing the reputation of his mark to the extent that the user of a similar trade mark by the appellant was likely to deceive an unwary customer. Even an averment of passing off was not made in the objection petition or the affidavits filed in support thereof by the respondent No.

1. Thus even if the documentary evidence and the affidavits filed by respondent No. 1 were legally admissible, they did not lend to the findings recorded by the Deputy Registrar and affirmed on appeal by the High Court. Respondent No. 1 himself did not base his opposition on the use of his mark earlier than the appellant, but maintained that by long and continuous user throughout India and the territories now constituting Pakistan, his mark bad become intimately associated in the minds of the public and the traders with his products and that the user of a similar mark by the appellant was likely to deceive and confuse in the minds of the customers his goods with the goods of the appellant. It has been noticed that the supplies made by respondent No. 1 to East Pakistan since 1948 were scanty and stopped altogether in 1952. Consequently when the appellant applied for registration of his mark in 1953 the goods of respondent No. 1 were not available in the market. In the circumstances them was no likelihood of `deception' or `confusion' as contemplated in section 8(a). But the Courts below upheld the opposition by$ respondent No. 1 merely on .the basis of his use from an earlier date of the mark with the device of a ship than on the volume of goods sold by him in East Pakistan for a number of years before the appellant approached the Deputy Registrar for registration of his mark. If mere use from an earlier date alone were to satisfy the requirements of section 8, then no one need have his mark registered under the Trade Marks Act at all. Another relevant circumstance in favour of allowing the appeal is that for the last seventeen years respondent No. 1 has sold no goods in East Pakistan. In re : Helena, Rubinstein Ltd.'s application (1963 R P C 229) for the registration of a trade mark Lloyd‑Jacob, J., allowed registration of a similar trade mark inter alia for the reason of time interval between the date of application and the hearing of the opposition. In setting aside the order of the Assistant Controller who had refused registration it was observed by the learned Judge: "in the present case; the time interval between the date of application for this trade mark and the date of hearing of the opposition has allowed a period of upwards of two year wherein the goods of both parties have been sold side by side in the same shops under their respective marks, and a number of declarants have stated their experience of such trading. They all declare that their assistants and their customers have found no difficulty arising from this conjoint use. Such practical experience is a more reliable guide than the anticipatory fear of the Opponents' declarants." In the present case the goods of the appellant alone were in market for quite some time when he applied for registration of his trade mark on 30th December 1953, and sixteen years have passed since then. Mr. Israrul Hossain also relied on the following decisions for the proposition that the applicant's right to registration is not affected by the opponent's user abroad. In re : an application by Notox Ltd., ((1931) 48 R P C 168) for a Trade Mark Impex Electrical Limited v. Weibbum ((1927) 44 R P C 405) and S. M. Taufiq and others v. National Biscuit Company, New York (P L D 1962 Kar. 355). The principle enunciated in these judgments has, however, no application to the present case as the opposition by respondent No. 1 was not based on the reputation of his mark in India or elsewhere, but in the territories constituting East Pakistan. Thus from all points of view, there was no substance in the opposition by the respondent No. 1 and the appellant was entitled to the registration of his mark. The appeal is, accordingly, allowed, but in the circumstances, we do not burden respondent No. 1 with the costs of these proceedings. S. Q. Appeal allowed