The English law, and the description of

The section requires that the offender must mark any movable property or goods or any case, package or other receptacle containing movable property or goods. Or, he must use any case, package or other receptacle having any mark thereon. The same must be done in a manner 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.

Trade mark and property mark

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The Madras High Court in S.K. Pothilingam v. N.M. Rowther quoted with approval the following observation with respect to the distinction between trade mark and property mark:

“The term ‘property mark’ is one unknown to English law, and the description of its wrongful use as given in section 481 would, in most cases, if not in every possible case, be within the scope of English law, viewing the wrong either as a crime or a civil injury.

The distinction in the Indian Penal Code between a ‘trade mark’ and a ‘property mark’ is, that the former denotes the manufacture or quality of the goods to which it is attached, and the latter denotes the ownership of them; or more briefly, the former concerns the goods themselves, the latter the proprietor of them.

From section 481 it may be gathered that the result of this distinction is to secure greater precision of definition, rather than to extend the law of trademarks as known to English lawyers. Thus, if A is known not to be the maker or manufacturer of the goods he sells, but only to have selected and put them up and he uses a certain mark to indicate to his customers that they will thus have the benefit of his skill in selection, then, in the terminology of the Indian Penal Code, the mark would be a property mark and not a trade mark; but if the main purpose of the mark were to indicate the quality of the goods, then even though A was not the maker of them, it would be a trade mark and not a property mark.

On the other hand, a mark may be applied to a natural product as distinguished from a manufactured one and though such mark would then probably be called in Indian law a property mark, it would be equally protected by English law as a ‘trade mark’.

This view has also been accepted and approved by the Supreme Court in Sumant Prasad v. Sheojanan Prasad, wherein it was observed that the concept of trade mark under section 2(1) (g) of the Trade and Merchandise Marks Act, 1958 is distinct from that of a property mark under section 479 of the Indian Penal Code.

In this case the accused, the manufacturers of the inferior quality ‘Puspa Raj’ scent, copied the property mark from the carton of the complainant’s much- in-demand ‘Basant Bahar’ scent. He was found guilty of using a false property mark and of selling goods marked with a counterfeit property mark under sections 482 and 486 of the Code.