066-NLR-NLR-V-62-K.-THIYAGARAJAH-Appellant-and-D.-M.-R.-PERERA-Inspector-of-Police-Responden.pdf
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Thiyagarajah v. Per era
1960Present :T. S. Fernando, J.
K.. THIYAGARAJAH, Appellant, and D. M. R. PERERA(Inspector of Police), Respondent
S. C. 58—M. C. Colombo, 20311 jB
.Merchandise Marks Ordinance (Gap. 122)—Offence as to trade description—Section
2 (2)—“ False trade description ”—“ Acted innocently
The appellant was carrying on the business of manufacturing aerated watersunder the name of “ Dominion Aerated Water Company ”, He was in thehabit of purchasing in the open market empty aerated water bottles whichhad once been the property of the “ Ceylon Mineral Waters Company ”, withthe name of that company embossed on thorn. Ho rilled such bottles withaerated waters other than those of the_ Ceylon Mineral Waters Company,and then, having placed his own company’s labels upon them, sold them asbeing his company’s drinks.
Held, that a false trade description within the meaning of section 2 (2) of theMerchandise Marks Ordinance had been applied to the drinks sold by DominionAerated Water Company none the less because the presence of the labels wouldprevent any reasonable purchaser from supposing that ho was buying anythingbut the drinks of Dominion Aerated Water Company.
A PPEAL from a judgment of the Magistrate’s Court, Colombo.
G. E. Chitty, Q.C., with Ananda Karunatilalce and Hannan Ismail,for the accused-appellant.
Wakeley Paul, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
T. S. FERNANDO, J.—Thiyagarajah v. Per era
309-
September 5, 1960. T. S. Fernando, J.—
The appellant was convicted in the Magistrate’s Court on the two-charges which are reproduced below :—
That he did on 24th June 1959 at Rodney Street, Borella, have in
his possession for sale or for any purpose of trade goods, towit, 119 bottles of aerated waters to which a false trade descrip-tion, namely, the words “MANUFACTURED UNDER THEAUTHORITY OF THE PROPRIETORS SCHWEPPES(<OVERSEAS) LONDON, ENGLAND ” and “SCHWEPPES”had been applied, and thereby committed-an offence in breachof section 2 (2) of the Merchandise Marks Ordinance (Cap. 122),punishable under section 2 (4) of the same Ordinance.
That he did at the time and place aforesaid have in his possession
for sale or for any purpose of trade goods, to wit, 56 bottlesof aerated waters to which a false trade description, namely,“ CEYLON MINERAL WATERS ” and “ THIS BOTTLEIS THE PROPERTY OF CEYLON MINERAL WATERSLIMITED ” had been applied, and thereby committed anoffence in breach of section 2 (2) of the Merchandise MarksOrdinance (Cap. 122), punishable under section 2 (4) of the sameOrdinance.
Another person, a servant of the appellant, was charged along with himand convicted in respect of the sale of 3 bottles of aerated waters of thekind described in charge (1) above and of 3 bottles of the kind describedin charge (2) above. The servant was fined a sum of Rs. 20 in respect ofeach charge, while the appellant was fined a sum of Rs. 75 also in respectof each charge.
Section 2 (2) of the Merchandise Marks Ordinance enacts that everyperson who sells or exposes for, or has in his possession for, sale or anypurpose of trade or manufacture, any goods or things to which any forged,trade mark or false trade description is applied, or to which any trademark or mark so nearly resembling a trade mark as to be calculated to-deceive is falsely applied, as the case may bo, shall, unless he proves
(a) ….
and (&)….
or (c) that otherwise he had acted innocently, be guilty of an offenceagainst this Ordinance."
Tho question raised in this court on behalf of the appellant is one oflaw, but before dealing with that question it is necessary to state thefacts as found in the court below.
The appellant carries on at 20/1 Rodney Street, Borella, the businessof manufacturing aerated waters, mineral waters, fruit drinks and con-dials under the name of Dominion Aerated Water Co., a name duly
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T. S. FERNANDO, J.—Thiyagarajah v. Perera
registered as required by the Business Names Ordinance (Cap. 120).On the day specified in the charges, the appellant’s servant referred toabove sold to a police constable six bottles of aerated waters bearinglabels on which had been printed the words “ LOTUS BRAND—LANKAORANGE—Dominion Aerated Water Co., 20J1, Rodney Street, Colombo 5”,and three of which had the words reproduced in charge (1) embossed onthem, while the other three had embossed on them the words reproducedin charge (2). Of the embossed words, the word “ SCHWEPPES ”had been embossed on the bottom of the bottles. The purchase wasmade by the constable in question by prior arrangement with his superiorofficer, an inspector of police, who was attempting on this day to secureevidence of the sale of these bottles of aerated waters. On the constablereporting the purchase to the inspector, the latter went along to thepremises of the appellant and took- into his custody some 175 bottles ofaerated waters of the two descriptions referred to above. The appellantwas present in his premises at the time the bottles were taken over by theinspector. It may be added that in the case of the bottles referred toin charge (2), apart from the words already reproduced in that charge, thefollowing legend had also been embossed :—“ ANY UN AUTHORISEDPERSON FILLING THIS BOTTLE WILL BE PROSECUTED ”.
The 175 bottles all bore labels similar to the labels on the bottles soldby the appellant’s servant to the constable. Certain other bottles werealso taken charge of by the inspector, and these too bore labels containingfhe name and address of the appellant’s business while the waters them-selves were described variously as ORANGE BARLEY, SPARKLINGORANGE BARLEY and FRUIT FLAVOUR COCKTAIL. Each offhe bottles was corked with the familiar crown corks, but these corkswere all plain with no markings or printing on them, and different fromfhe corks used by the Mineral Water Company on its bottles which hadmarkings on them. Specimens of the contents of some of the 175 bottlesfound in the possession of the appellant were sent for analysis by the■Government Analyst who reported that the contents were different fromany of the varieties of the Schweppes orange drinks or the other kindsof orange drinks manufactured by the Ceylon Mineral Water Company.
The Magistrate was satisfied that these bottles had once been the pro-perty of the Ceylon Mineral Water Company which, by arrangementwith the manufacturers of the aerated and mineral waters known asSchweppes, manufactures Schweppes waters in Ceylon in addition toother kinds of aerated or mineral waters. It is not disputed that none ofthe waters manufactured by the Ceylon Mineral Waters Company is•described by the names Lanka Orange, Orange Barley, Sparkling OrangeBarley or Fruit Flavour Cocktail which were the names printed on thelabels attached to the bottles taken away from the premises of theappellant. He was further satisfied that in buying the bottles of thekind found in the appellant’s possession no reasonable person was likely"to be misled into the belief that he was buying Schweppes waters orany of the other kinds of waters manufactured by the Ceylon MineralWater Company.
T. S. FERNANDO, J.—Thiyagarajah v. Berera
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The appellant proved to the Magistrate’s satisfaction that he was in“the habit of purchasing empty bottles in the open market throughitinerant empty bottle vendors and that bottles bearing the Schweppesmarks and the marks of the Ceylon Mineral Water Company are alwaysavailable for purchase in that way.
In spite of these findings which appear to show that the appellant wasnot deceiving the public, the learned Magistrate found the charges es-tablished, and in reaching this finding he was undoubtedly influenced,as indeed I am in deciding the question raised on appeal, by a decision ofthe Kang’s Bench Division in England on a case stated by justices afteraconviction entered by them in a prosecution for an .offence under theMerchandise Marks Act of 1887 (50 & 51 Viet. Ch. 28). The case Irefer to is Stone v. Burn x, where three judges of the King’s Bench (LordAlverstone C. J., Bickford J. and Lord Coleridge J.) concurred in the-opinion that a conviction was correctly entered in a case which has.such a striking resemblance to the case before me in regard to both facts■and law that the two are almost indistinguishable from each other. In•that case, Stone, a bottler of beer, having in the course of his businesscome into possession of certain bottles belonging to the Eelinfoel BreweryCompany and embossed with that company’s name, filled them withbeer brewed by Bass & Co., placed Bass & Co.’s labels upon them, and then-sold the contents as being Bass & Co.’s beer. The Court upheld thefinding that a false trade description, viz. the Eelinfoel Brewery Com-pany’s name, had been applied to the beer brewed by Bass & Co. nonethe less because the presence of the Bass labels on the bottles would■prevent any reasonable purchaser from supposing that he was buyinganything but Bass’s beer. In forming the opinion they did, the judgesof the King’s Bench felt that effect had to be given to section 5 of theMerchandise Marks Act, the relevant part of which reads that “a person-shall be deemed to apply a trade mark or mark or trade description togoods who encloses the goods which are sold or exposed or had in posses-sion for any purpose of sale, trade or manufacture, in, with or to any-covering …. to which a trade mark or trade description has been-applied”. By sub-section (2) of section 5 the expression “ covering ”Is defined as including a bottle. As Bickford J. put it (vide page 932),“ if in so doing he applied the Eelinfoel company’s name to the beer it-clearly was a false name …. and therefore when he sold thebeer he sold goods to which a false trade description was applied andconsequently by virtue of section 5 he committed an offence unless heproved that he acted innocently
The question of law raised by Mr. Chitty on behalf of the appellantwas two-fold :—
(1) that- having regard to the findings of the Magistrate, even if it isheld that a trade description was applied it was not a false tradedescription, and
{2) that in any event the Magistrate was in error when he concludedthat the appellant had failed to prove that he acted innocently,i L. It. {1911) 1 K. B. 927.
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T. S. FERNANDO, J.—Thiyagarajah v. Per era.
Mr. Chitty contended, that the case of Stone, v. Bum (supra) had beenwrongly decided and urged me to take the view that the word** innocently ” in section 2 at least bears not only the meaning put uponit by the Kang’s Bench but also the meaning “not guiltily”. He wenton to argue that the findings of fact reached by the learned Magistratenegatived that the appellant acted guiltily in the matter of the bottlingof the waters manufactured by him in the way he did. While I have notbeen unimpressed by the argument of learned counsel, X do not considerit cogent enough to disregard the opinion of a Bench of three judgesthat the innocence contemplated by the statute exists only where theinfraction was committed by inadvertence or mistake of fact. LordAlverstone G.J. observed that “ mere ignorance of the provisions of thestatute does not amount to innocence for this purpose. The words“ acted innocently ” point to the same misapprehension of fact, for hedid what he did with full knowledge and claiming that he had a right to 'do it ”. Lord Coleridge J. put the same matter thus :—“ But, as wassaid by Channel! J. in Christie’3 case1-, the innocence contemplated by theAct is innocence of any intention to infringe the Act of Parliament. Suchinnocence can only exist where the infraction was committed by inad-vertence or mistake of fact. And here the appellant knew all the facts—
his only mistake was as to the effect of the statute ”.
>
Our own statute, the Merchandise Marks Ordinance (Cap. 122) passedin 1889 is almost word for word and section for section a repetition of theMerchandise Marks Act of 1887 which has been the subject of interpre-tation in Stone’s case (supra). Having regard to the close identity infacts between that case and this, the authority is absolutely in point and Iwould respectfully adopt it for application to the question raised inappeal before me. The learned Magistrate has found that the appellant,just as much as Stone in the English case, was not Iabotiring under anymistake of fact, that he was aware of what he was doing and claimed tohave a right to do it as the bottles were readily available'in the market.In these circumstances the appeal must be dismissed. I do so and think:it is not irrelevant to observe at this stage that the appellant has pre-viously been convicted of an offence punishable under this same Ordinance.
Appeal dismissed.
i L. R. (1900) 2 Q. B. 522.