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Present: Bertram C.J.
PERERA v. WIJESURIYA.
27—P. C. Colombo, 25,420.
Trade Marks Ordinance, No. 14 of 1888, a., 42—CAse o/ Royal Arms by anotary on his deeds.
‘ A notary has no right by virtue of his office to use the Royal
– Arms on his notarial deeds.
facts appear from the judgment.
JansZy C.C.y for the Crown, appellant.—The words “ in such amanner …. as aforesaid,” only qualify the phrase “ orarms so nearly resembling the same as to be calculated to deceive,”and do not apply to the words “ the Royal Arms.” Hence, decep-tion will be of the essence of the offence where the Royal Arms arenot used, but only when arms resembling the Royal Arms are used.In this case it is not denied that the "Royal Arms have been used.
Nagalingamy for the accused, respondent. [Bertram C.J.—Isdeception the gist of the offence ?] The words “ calculated to leadother persons to believe ” clearly indicate the creation of a falsebelief in the minds of others, and the word “lead” has to beconstrued to mean mislead. This section has been so construed in
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England. See the case Cameron v. Kennedy1 cited in Stone9sJustices' Manned (46th edition), at page 1236. The offence, too,is created, not in an Ordinance relating to the Grown, but in oneregulating the proprietary rights of private individuals, the objectbeing to prevent a person-in any trade or profession from gaining anunfair advantage over others engaged in a similar-pursuit by falselyrepresenting that he is carrying on his trade under the authority ofGovernment, when, in fact, he is not.
February 10, 1920. Bertram C3J.—
This is an appeal by the Crown, which raises a point of law onthe interpretation of sub-section (3) of section 42 of the TradeMarks Ordinance, No. 14 of 1888. It appears that a notary,prosecuted under that section, has been accustomed to use theRoyal Arms on his notarial deeds. The learned Magistrate, beforewhom he has been prosecuted, has held that by virtue of hisappointment he is entitled so to do. He holds that the case doesnot come within the words of the sub-section, observing “theessence of the offence is the doing of an act by the accused calculatedto deceive others that he was appointed to .act as a notary by HisExcellency the Governor, and how is it possible for him to be guiltyof such an act if, in fact and in truth, he was so appointed.”
Mr. Jansz, who appears for the Crown, has suggested an inter-pretation of the section which I do not think is tenable. He wouldread it in this way :—
Any person, who without the authority …. assumesor uses in connection with any trade ….
The Royal Arms, or
Arms so nearly resembling the same as to be calculated to
deceive, in such a manner as to be calculated to lead otherpersons to believe that he is carrying on his trade ….by or under such authority as aforesaid, shall, be guiltyof an offence ….-
I do not think that this is a possible interpretation. The words“ in such a manner ” clearly govern both cases contemplated,namely, firstly, the case of the Royal Arms, and secondly, the caseof Arms so nearly resembling the same as to be calculated to deceive.Nor, on the other hand, do I think that the learned Magistrate’sinterpretation is the correct one.
Mr. Nagalingam, who appeared in support of the judgment,argued that the word “ lead ” ought in the context to be construedto mean “ mislead,” and that the words in the context in whichthey are used suggest a false belief engendered in ther minds’ of
» 64 J. P. 41.
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persons who are misled by the action of the offender. He says thatthe section assumes that any person who carries on his businessunder Royal or Government authority is entitled to use the RoyalArms.
There is undoubtedly something to support this view in thewording of the section, and it is, no doubt, because the wording isnot artistic, that in the modern Act now in force in England theprovision has been re-drafted. Our section was originally takenfrom section 106 of the Patent Designs Trade Marks Act, 1883.But that section has now been replaced by section 68 of the TradeMarks Act of 1905. Under the enactment thus re-drafted no possibledoubt could arise. In spite of the fact that the drafting of thesection might have been jmproved, I do not think that there canbe any substantial doubt as to its meaning. To interpret it on theassumption that any person who carried on his business under aRoyal or Government authority was entitled to use the Royal Armswould be contrary to the whole history on the subject. The useof the Royal Arms in connection with a trade or business was aprivilege allowed to persons who were purveyors to the Royalhousehold or to the households of members of the Royal Family.This is indicated by the special reference to His Majesty and theRoyal Family in the section under consideration. There may havebeen certain extensions of this privilege, but this was the subjectwith which it was mainly concerned. But it was of the essence ofthe privilege that there should be a Royal or Government authori-zation to make use of this particular emblem. It would be quitecontrary to one’s experience of daily life to hold that, according tothe custom with reference to which the enactment-was made, anyperson-who was carrying on his business under the license of aGovernment authority, was entitled to make use of the RoyalArms to indicate that fact. In my opinion, what the section meansis this : that a person is not entitled by means of the Royal Armsto create the impression that he is carrying on his calling under aRoyal or Government authority, however true that impressionmay be, unless he has express authority to use the Royal Arms forthat purpose.
I am, therefore, of opinion that the appeal should be allowed,but as the words of the section are admittedly obscure, I think itwould be sufficient to impose in this particular case a purely nominalfine of Re. 1.
PERERA v. WIJESURIYA