P L D 1986 Lahore 107 (PLP)

Muhammad Rafiq and Muhammad Fayyaz petitioners, partners in Khan Foundry. Sumandri Road, Faisalabad, were prosecuted by Muhammad Yaqoob complainant-respondent, proprietor. New Batala Foundry and Works Gondlawala Road, Gujranwala, on charges under sections 482/485/486 and 120, P. P. C. alleging that the petitioners infringed the trade mark of his fodder cutting machine bearing trade mark `Toofan Mail Sitara Marks Toka Machine' which he got registered with the Registrar of Trade Marks. Petitioners have come up under section 561-A, Cr. P. C. seeking quashment of the proceedings against them before a local Magistrate on the ground that neither the complaint nor complainant-respondent's statement disclosed the commission of the offences relating to trade marks because it is nowhere alleged that the petitioners had initiated his trade mark for the sale of their similar fodder cutting machines. On the contrary the machines prepared by the petitioners bore different trade mark such as `New Khan Marks 'Sher Marka' which had been registered under Trade Marks Act and as such petitioners' prosecution. was mala fide and an abuse of the process of the Court.

2. I have considered the matter and am of the view that protection of ones goods against their fraudulent imitation by another can be done by a distinct trade mark for each of their goods because it distinguishes them from the similar goods manufactured by other makers. A person is said to have used a false trade mark if he marks any goods or uses any case package or other receptacle with any mark thereon is a manner reasonably calculated to cause it to be believed that the goods so marked or contained in any such receptacle are the manufacture or merchandise of person whose manufacture or merchandise they are actually not. In the instant case, there is no allegation that the petitioners have in any mariner either used the complainant's- trade mark or made any imitation of it. Even the receipt which he has attached with the complaint issued by one of petitioners' dealers to a customer namely Afzal does not indicate that the complainant's trade mark of any imitation of it has been made on the goods sold by the dealer to the said customer. It, therefore, follows that complainant's allegation supported by documents which he proposes so lead in evidence are no proof of infringement of trade mark or property mark as defined in the Penal Code. It is apparent from his assertion that his only grievance is that of an imitation or fodder cutting machine's design which is not punishable under any of the offence contained iii the Chapter regarding the Offences relating to Document and to Trade or Property Marks. Admittedly a petition under section 51-A of the Patents and Designs Act, 1911, is pending adjudication before the High Court, Sind, at Karachi and the respondent has also filed a suit under the Patents and Designs Act, 1911, which is pending before the District Judge, Gujranwala. The two manufacturers are making goods of the sum kind under different trade marks and selling their merchandise under different property marks but still if there is any infringement of the patent or design the remedy for such a contravention would be under the provisions of the Patents and Designs Act. If there is a piracy of the registered design as indicated under section 53 of the Patent and Designs Act, 1911, liability under the statute is only by way of damages and as such an imitation of design by no stretch of imagination can be said to be an infringement of a trade mark. I am, therefore, of the view that prosecution in this case would amount to an abuse of the process of the criminal Court. This petition is accepted and the proceedings pending before the Magistrate on respondent's complaint are quashed. M. B. A. Proceedings quashed.