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It may be in a broad view or more complete and simple by observing from commentary and case law rather than from bare Act. Define a trademark, a book of reference3 comments “A trade mark is some symbol consisting in general of a picture, label, word or words which is applied or attached to a trader’s goods, so as to distinguish them from similar goods of other traders and to identify them as his goods or as those successors in the business in which they are produced or put forward for sale. “In Loke Nath Sen. Vs. Ashwini Kumar De4 , it was held; “A mark in order to be trade mark must be ‘distinctive,’ that is to say, adapted to distinguish the goods of a proprietor of a trade mark from those of other persons. A mark which merely describes the quality or origin of an article or is such as is commonly used in the trade to denote goods of a particular kind is not distinctive. To determine whether a mark has become a trade mark, the Court has to take into consideration the extent to which its user has rendered the mark in fact distinctive of the goods in question.” It was followed in A. Khunja lam and two other Vs. J.C.Mohamed5 .Concurrent finding is also mentioned in Anath Nath Dey V.King Emperor6 that: “A trade mark must be some visible and concrete device or design affixed to goods to indicate that they are the manufacture of the person whose property the trade mark is.”

It must, however be noted that since the Code itself recognizes the right in respect of a mark, questions arisen on acquisition of such mark might be considered. On that question we may cite two cases: In P.A. Pakir Mahomed Vs. Emperor7 , it was held; “A trade mark may be acquired by adoption and user upon a vendible article and when such user has been proved, the property of the person using the trade mark will be acquired by user.” It was followed in U Kyaw Vs. U Ba Aye8 that, “ “*** **** **** property in or right in respect of a mark may be acquired by user.”

We must move to another provision of property mark defined in section 479 of the Code which reads: “A mark used for denoting that moveable property belongs to a particular person is called a property mark.” Property mark compare to the preceeding section, is clearly distinct from trademark because the former denotes the ownership of a property where the latter denotes the ownership of a mark. But both aim to prevent from using false marks. Case Law concerning with property mark is the least to be considered as reference.

Though the infringement of a mark is rather considered to be injurious to private welfare than to the interest of the public or the state, the legislature in its anxiety to protect traders, has allowed of resort to the criminal Courts to provide a speedy remedy. Thus for using a false trade mark provided in section 480 of the code reads: “Whoever marks any goods or any case, package or other receptacle with any mark thereon, in a manner reasonably calculated to cause it to be believed that the goods so marked, or any goods contained in any such receptacle so marked, are the manufacture or merchandise of a person whose manufacture or merchandise they are not, is said to use a false trademark.” Similarly using a false property mark in section 481 of the code reads: “Whoever marks any moveable property or goods or any case, package or other receptacle containing moveable property or goods, or uses any case, package or other receptacle having any mark there on, in a manner reasonably calculated to cause it to be believed that the property or goods so marked, or any property or goods contained in any such receptacle so marked, belong to a person to whom they do not belong is said to use a false property mark."

By observing a series of case law and prevailing practice a person aggrieved by the infringement of his trade mark has two remedies open to him: (1) he can institute criminal proceedings under the Code, or (2) he can bring an action for an injunction and damages; and although the criminal Court has a discretion in......

3 Law of Crimes.
4 1937 India Law Reports 1 Cal.665.
5 1949 Burma Law Reports .650
6 1912 40 Cal. 281.
7 A.I.R 1929 Ran 322.
8 1962 Burma Law Reports PP.187-190.
 
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