Section 79 – The Trade and Merchandise Marks Act,1958

The Trade and Merchandise Marks Act,1958

Section 79. Venality for selling goods to which a false trademark or false traded description is applied

Any person who sells, or exposes for sale, or has in his possession for sale or for any purpose of trade or manufacture, any goods or things to which any false trade mark or false description is applied or which, being required under Sec. 117 to have applied to them an indication of the country or place in which they were made or produced or the name and address of the manufacturer or the person for whom the goods are manufactured, are without the indication so required, shall, unless, lie proves,-

(a) That, having taken all reasonable precautions against committing an offence against this section, he had at the time of the committed of the alleged offence no reason to suspect the genuineness of the trade mark or trade description or that any offence had been committed in respect of the goods; and

(b) That, on demand by or on behalf of the prosecutor, he gave all the information in his power with respect to the person from whom he obtained such goods or things, or

(c) That otherwise he had acted innocently, be punishable with imprisonment for a term which may extend to two years or with fine, or with both:

Provided that when the offence against this section is in relation to goods or any package containing goods which are drugs as defined in Cl. (b) of Sec. 3 of the Drugs and Cosmetics Act,1940 (23 of 1940) or “food” as defined in Cl. (v) of Sec. 2 of the Prevention of Food Adulteration Act,1954 (37 of 1954) the offender shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both. by anyone outside the territory by post, as has been done by the plaintiff, for the purpose of present proceedings, but that would not be sufficient to give cause of action for the suit. Defendant had admittedly advertised his product in a local Bikaner newspaper and no deliberate act of the defendant could be said to be committed within this jurisdiction. If the newspaper had wider publication or was freely sold in other jurisdictions or if the defendant had given the insertion with the intention of a wider publicity, the position would have been different. On the existing material, prima facie, it would be doubtful if the Delhi High Court would have jurisdiction to deal with this cause of action.1

SUIT FOR INFRINGEMENT OF TRADE MARK-INTERM INJUNCTION WHEN CANNOT BE GRANTED. -As for Harsha the plaintiffs registration is of the year 1975 and the plaintiff was apparently not using it in February,1975 when the plaintiff served a notice on the defendant because the wrongful use of the trade mark Harsha was not mentioned in the notice. That apart, defendants have placed on record not only the various newspapers in which they have been extensively advertising the mark but also the bills for the period 1965 onwards which would appear to show that the defendants had been either manufacturing, marketing or dealing in sewing machines with this trade mark since 1965. It would, thus, appear that there would be very little apprehension of any confusion in the course of trade of any attempt to pass off the goods of the defendant as that of the plaintiff because, by and large, the plaintiff does not deal with the proverbial “unwary customer” , who is likely to be confused. Thus it is clear a view that no restraint would be justified on the facts and circumstances of this case. 2

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1. Chandra Bhan Dembla Trading, Delhi v. Bharat Sewing Machine Co., Bikaner, A.I.R. 1982 Delhi 230 at p. 231.

2. ibid. at pp. 232. 233: Power Control and Appliances Co. v. Sumeet Machines Pvt. Ltd.. A.I.R. 1993 Mad. 120 at p. 128,129.

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