Delhi District Court
Cc No.38/01/13 M/S Century Plyboards ... vs . Unknown Persons 5/5 on 24 August, 2013
IN THE COURT OF SH. LOKESH KUMAR SHARMA, CHIEF
METROPOLITAN MAGISTRATE, SOUTHEAST DISTRICT, NEW DELHI
CC No.38/01/13
Unique I.D. No. 02406R0181782013
M/s Century Plyboard India Ltd.
1st Floor, Turner Morrision Building 6,
Lyons Tange Kolkatta 700001
West Bengal, India
Through their Authorized Representative
Sh. Arif Ali
versus
Unknown Person
Date of institution of complaint :08.07.2013
Date of reserving the order :16.08.2013
Date of pronouncement of order :24.08.2013
ORDER ON THE APPLICATIONS UNDER SECTION 156(3) Cr.P.C. READ
WITH ANOTHER FILED UNDER SECTION 93/94 Cr.P.C. FOR ISSUANCE OF
SEARCH WARRANT
ORDER:
1. Present complaint mentioning about the offences under Section 103/104 of CC NO.38/01/13 M/s Century Plyboards (India) Ltd. vs. Unknown Persons 5/5 Trade Marks Act, 1999 read with Section 63 of Copy Right Act read with Sections 420/406/467/468/471/120B IPC, has been filed by one Sh. Arif Ali through his counsels M/s CGA Associates on the grounds that he was authorized representative of the complainant who was the registered owner of Trade Mark "CENTURY" and was engaged in the business of manufacturing, selling and distributing various plywood products under the said Brand names such as CENTURY, CENTURY TERRASHIELD, CENTURY TERRMITE, CENTURY SAFEWOOD, CENTURY FURNITURE, CENTURY FLEXOMICA, CENTURY PRELAM, CENTURYCOL, CENTURY STAR, CENTURY CHAMAK, CENTURY LUMBER, CENTURY CPP, CENTURY VENEERS, CENTURY BLOCK BOARDS, CENTURY BOND etc. Further it was stated that in the second week of June 2013, it came to the notice of the complainant that some unscrupulous persons were using the deceptively similar brand of the complainant company and were selling their goods under the name and style of M/s 21st CENTURY in order to deceive the people and to misuse the reputation and goodwill of the complainant, hence the present complaint under Section 156(3) Cr.P.C. was filed for issuance of directions to the SHO concerned for registration of a case and alongwith said application another application has also been filed for issuance of search warrants to seize the duplicate spurious goods.
2. I have heard the learned counsel Sh. P.R. Chatterjee appearing for the complainant and have also carefully examined the record.
3. It is interesting to note here, that in his authorization purported to have been CC NO.38/01/13 M/s Century Plyboards (India) Ltd. vs. Unknown Persons 5/5 received from the main complainant i.e. Century Ply, the authorized representative Arif Ali has accepted it on behalf of CGA Associates who are the lawyers for the complainant in this case. However, in the present application filed before the Court, he has signed differently through the said M/s CGA Associates and hence has shown himself to be a separate entity other than CGA Associates which vitiates his very authorization to file and prosecute the present complaint himself being a part of said CGA Associates. Furthermore, even it is also not clear as to from where the person authorizing said Arif Ali had acquired his own authorization to do so. Be that as it may, even if this fact is ignored being technical in nature, even then also, I have no hesitation in holding that the present complainant as per the documents placed on record acquires only Trade Mark in respect of word "Century" and that too written in a particular manner and design alongwith its font, design and size including one Century ply etc. However, the copies of photographs of alleged spurious products produced on record show the alleged goods to be bearing the name of "21 st Century" which is in no manner written either in the similar font, manner or design as has been done in the case of the complainant but in an entirely different manner and style. Moreover, on the one hand the complainant is alleging that some unidentified persons were indulging into these acts but he has failed to disclose as to where from the said photographs were obtained by him, so as to give some idea about those persons, who were selling such products . It is the settled preposition of law that the criminal court while issuing any process against any person has to be extra cautious as it relates to the personal liberty of an individual CC NO.38/01/13 M/s Century Plyboards (India) Ltd. vs. Unknown Persons 5/5 and thus the courts should not blindly believe the version of the complainant appearing before them and start issuing process at his behest to jeopardize the liberty of others. It is no doubt that the complainant has acquired the said Trade Mark over the word "Century" which has been written in a specific manner and design and in a particular colour with a unique font and alignment and colour combination as well. However, this very fact does not debar the other persons in this universe from using or even speaking the word "Century" from their mouth because the complainant allegedly acquires the entire Copy Right over this word.
4. It is the cardinal principle of law that in order to attract the criminal penal provisions of the Trade Mark and/or Copy Right Act, it is essentially required that the goods sought to be sold in the market under the garb of the goods for which there exists a registered Trade Mark in favour of their holder, the same should have been either visually or phonetically so similar so as to be viewed by a common/general/lay man as those were actually the goods belonging to the holder of the Copy Right in respect of the same. However, in the absence of any such phonetic or visual similarity, it cannot be held that the manufacturer of those goods in any manner whatsoever was trying to pass on his own goods under the garb of those goods which actually belonged to the complainant. Hence, by no stretch of imagination, they could be regarded as visually or phonetically deceptive of the goods of the complainant.
5. Though, reliance has also been placed by the learned counsel for the complainant on the ratios of the following cases: CC NO.38/01/13 M/s Century Plyboards (India) Ltd. vs. Unknown Persons 5/5
1) Ram Kishore vs. State of U.P. (Supreme Court Judgment)
2) Haldiram Bhujiawala Ltd. vs. Haldiram Food International & Ors., 2004 (29) PTC (Karnataka).
6. However, the ratios of both the aforesaid cases are not applicable to the facts of the present case because no deceptively similar logo or writing has been used by the manufacturer of ply board under the name and style of "21st Century" as compared to the complainant's and furthermore there is no previous history of any pending litigations between the parties herein as was the case in the cited judgment no. 2 (supra).
7. In view of the aforesaid facts, I am of the considered opinion that virtually no offence whatsoever has been made out or has ever been committed in the present case. Therefore, the applications of complainant under Section 156(3) Cr.P.C. read with section 93/94 of Cr.P.C. are hereby dismissed with no orders as to costs. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ( LOKESH KUMAR SHARMA) TODAY ON 24.08.2013. CMM/SE/Saket Court/New Delhi. CC NO.38/01/13 M/s Century Plyboards (India) Ltd. vs. Unknown Persons 5/5