The New Nation - Internet Edition

Appellate Division

(Civil)

PRESENT

Md. Ruhul Amin CJ

M. M. Ruhul Amin J

Md. Tafazzul Islam J

Md. Abdul Matin J

Sunil Kumar Das……… Petitioner

-Vs-

Deputy Registrar of Trade Marks, The Trade Marks Registry Shilpa Bhavan, Annexe Building, 91, Motijheel Commercial Area, Police Station Motijheel, District Dhaka and another ttt.. Respondents.

The Code of Civil Procedure, Section 11

Trade Marks Act, Section 76

Trade Mark Appeal ……..(1)

The petitioner Sunil Kumar Das being the sole proprietor of the Bangladesh Manufacturer and Merchant made an application on 31.07.1997 to the Registrar of Trade Marks, Dhaka for registration of mark "CANNON" in class 25 for Hosiery Products ……….(2)

The said application was duly published in Trade Marks Journal No.209 in the Civil Petition for Leave to Appeal No.341 of 2007

(From the judgment dated 15.02.2007 passed by the High Court Division in Trade Mark Appeal No.21 of 2003.) month of January, 2001. t (3)

The application for registration filed by the appellant as well as the opposition case were disposed of by the Deputy Registrar of Trade Marks by the judgment and order dated 29.9.2002 rejecting the application allowing the opposition case No.52139 in Class 25 filed by the applicant holding that the opponent respondent No.2 is the adopter and prior user of the mark Cannon belonging to Cannon Kabushiki Kaisha, Japan and the applicant petitioner has adopted the mark by way of imitation and between the two marks Canon and Cannon there has been difference phonetically and in pronunciation and the mark belonging to the opponent respondent No.2 has been registered and renewed in Bangladesh. On appeal, the learned Judges of the High Court Division on hearing the submission of the learned Advocates of both sides, were pleased to dismiss the appeal by judgment and order dated 15.2.2007 . ttt. (5)

Apart from the question of finality of decision on the point as referred to by the High Court Division we are of the view that such use of same name "Cannon" by the petitioner will create confusion in the minds of the consumers who are likely to be misled by such name of a foreign company and therefore the High Court Division committed no illegality in dismissing the appeal. ………… (10)

Syed Amirul Islam, Senior Advocate instructed by A. K. M. Shahidul Huq, Advocate-on- Record ……..For the Petitioner

Respondents ………Not represented.

JUDGMENT

Md. Abdul Matin J. This petition for leave to appeal is directed against the judgment dated 15.02.2007 passed by the High Court Division in Trade Mark Appeal No.2l of 2003 dismissing the appeal with cost and affirming the judgment and order dated 29.09.2002 passed by the Deputy Registrar of Trade Marks in Opposition Case No.1824 of 2001 allowing the opposition case and rejecting the Trade Mark Application No.52l39 in Class 25.

2. The facts, in short, are that the petitioner Sunil Kumar Das being the sole proprietor of the Bangladesh Manufacturer and Merchant made an application on 31.7.1997 to the Registrar of Trade. Mark, Dhaka for registration of Mark "CANNON" in class 25 for Hosiery Products.

3. The said application was duly published in Trade Marks Journal No.209 in the month of January, 2001.

4. The respondent No.2 thereafter filed! notice of opposition to the application for Registration of the said Marks in Class 25 being opposition Case No.1824 of 2001 contending, inter-alia, that since inception of their business they (opponent the respondent No.2) adopted the word: "CANNON" and the "LOGO" being the first word of their trading style as a Trade: Mark for the goods manufactures and sold! By them and they have been using the i Trade Mark "CANNON" and "LOGO" from the year 1954 throughout the world including Bangladesh and they also obtained registration of the said Marks in many' countries and they being the proprietor of the said Trade Mark already used the mark for different kinds of goods including Hosiery goods and they applied for registration of the said Mark "CANNON" for all goods in Class 25 under application No. 22857 and obtained registration and thereafter renewed the registration for a period of 15 years from 01.10.1992 and by virtue of such registration they became the absolute owner of the said Trade Mark in Bangladesh for all kinds of Hosiery goods and as such no body e 1 se in Bangladesh has any right to adopt or use the word "CANNON" or any other word or words which are likely to cause confusion and deception in the course of Trade of Hosiery goods. The petitioner as applicant previously applied for registration of exactly similar Trade Mark for Hosiery goods under Trade Mark Application No. 22589 in Class 25 which was advertised in Trade Marks Journal No.101 at page 260 in the month of April 1987 after publication of the mark in the Trade Marks Journal the opponent, the respondent No.2 filed opposition Case No.527 of 1987 and the registrar of trade mark after receiving evidence and hearing both the parties allowed the opposition case' and refused registration of the trade mark "CANNON" on the said application by order dated 10. 10.1993. Against the said order and decision of the Registrar the appellant preferred an appeal in the High Court Division being Trade Mark Appeal No.18 of 1993 and the High Court Division dismissed the appeal.

5. The application for registration filed by the appellant as well, as the opposition case were disposed of by the Deputy Registrar of Trade Mark by the judgment and order dated 29.09.2002 rejecting the application allowing the oppositi0n case No.52139 in class 25 filed by the applicant holding that the opponent respondent No.2 is the adopter and prior user of the mark Cannon belonging to Cannon Kabushiki Kaisha1 Japan and the applicant petitioner has adopted the mark by way of imitation and between the two marks Canon and Cannon there has been difference phonetically and in pronunciation and the mark belonging to the opponent respondent No.2 has been registered and renewed in Bangladesh. On appeal the learned Judges of the High Court Division on hearing the submission of the learned Advocates of both sides, were pleased to dismiss the appeal by judgment and order dated 15.02.2007.

6. Being aggrieved by the impugned judgment and order of the High Court Division the petitioner has filed this petition.

7. We have heard the learned Counsel and perused the petition, the impugned judgment and order of the High Court Division and other papers on record.

8. The learned Counsel submits that the learned Judges of the High Court Division fell into an error of law in applying the principles of res-judicata, inasmuch as the Trade Mark Act is .a special law and in an appeal under Section 76 of the said Act the provisions of Section 11 of the Code of Civil Procedure has no manner of application and in that view of the matter the learned Judges of the High Court Division ought to have entered into merits of the appeal rather than dismissing the same by applying the principles of res-judicata.

9. It appears that the High Court Division not only considered the finding that the dispute with regard to the right of ownership and the use of the mark Cannon and the registration of the mark Cannon was finally adjudicated by the High Court Division in Trade Mark Appeal No.18 of 1993 but also considered that the judgment was upheld by the Appellate Division by dismissing the Civil Petition for Leave to Appeal No.355 of 2002 chal-lenging the judgment of the High Court ; Division.

10. Apart from the question of finality of decision on the point as referred to by the ; High Court Division we are of the view : that such use of same name "Cannon" by the petitioner will create confusion in the minds of the consumer who are likely to be misled by such name of a foreign company and therefore the High Court Division committed 'no illegality in dismissing the appeal.

11. We find no merit in this petition which is accordingly dismissed.

Appellate Division

(Criminal)

PRESENT

Md. Ruhul Amin C J

M. M. Ruhul Amin J

Md. Joynul Abedin J

Md. Hassan Ameen J

Dr. Hafizur Rahman and another

……….Petitioners.

-Vs-

The State and another

tt. Respondents.

Judgment 21st March 2007

The Penal Code, Sections 315 and 316-The Code of Criminal Procedure, Section 561A

It is alleged that due to negligence on the part of the accused-petitioners, she gave birth to a dead child and thereby the accused-petitioners committed an offence under Sections 315 and 316 of the Penal Code (2)

An accused may invoke the jurisdiction of the High Court Division under Section 561A of the Code of Criminal Procedure, if he can make out a case of quorum non judice of the trial Court or that the facts alleged do not constitute any criminal offence. The High Court Division may exercise inherent power to quash a proceeding or even conviction on conclusion of trial if the Court concerned got no jurisdiction to hold the said trial or the fact alleged against the accused does not constitute any criminal offence. A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the record of the High Court Division. As to whether the accused-petitioners were negligent of their duties or they acted beyond their duty and their action had ultimately taken away the life of a child in the womb of the informant opposite party No.2 is still to be tried after examination of the witnesses and in view of the facts and circumstances of the case, we are of the opinion that entertainment of the prayer seeking quashing of the proceeding at the stage will be stifling the proceeding since the informant opposite-party No.2 had no opportunity to prove her case by adducing evidence : and as such we are of the opinion that there is no substance in this petition and find no other alternative but to dismiss the same ………(6)

Khondker Mahbubuddin Ahmed, Senior / Advocate, represented by· Md. Zahirul

Islam, Advocate-on-Record. ………For the Petitioners.

Respondents Not represented.

JUDGMENT

Md. Hassan Ameen J: This criminal petition for leave to appeal has been filed against the judgment and order dated 17-1-2004 passed by a Division Bench of the High Court Division in Criminal Miscellaneaus Case No.7242 of 2001 discharging the Rule. The case was filed seeking quashing of the proceedings of G.R. Case Na.382 of 2000 of the Court of Metropolitan Magistrate, Dhaka.

2. Facts, in short, are that one Nasreen Sultana as informant lodged an FIR an 15-2-2000 with Dhanmondi Police Station, alleging, inter alia, that she conceived in the middle .of last year and she had been under treatment of Dr. Hafizur Rahman, owner of Mother and Child Care Centre and as per his (Dr. Hafiz) advice all necessary medical check-up was done. The further case .of the informant was that an 25-1-2000 when she quick with child she went to the aforesaid clinic where she found accused-petitioner No.2, Dr. Ruhi Morshed on duty along with one nurse. The accused-petitioner No.2, Dr. Ruhi Morshed got her to the labour unit of the clinic where she told Dr. Ruhi Morshed far taking steps far delivery by operation as was told by the accused-petitioner No.1. Dr. Hafizur Rahman. The accused petitioner No. 2 instead of taking any step far operation tried far normal delivery. The further case of the informant was that on the fallowing day i.e. an 26-1-2000 accused-petitioner No.1, Dr. Hafizur Rahman entered into the labour room and rebuked the accused-petitioner Na.2, Dr. Ruhi Morshed and took her to operation at 8.15 a. m. The accused-petitioner No. l, Dr. Hafizur Rahman made operation for the purpose of delivery, who later an told her that she gave birth to a dead female child. It is alleged that due to negligence on the part of the accused petitioners, she gave birth to a dead child and thereby the accused-petitioners committed an offence under Sections 315 and 316 .of the Penal Code.

3. Police on completion of investigation submitted final report, which was accepted by the learned Magistrate on 25-02-2001 discharging the accused-petitioners from the case. Against which, the opposite-party No.2, the informant filed a naraji petition, which was allowed with direction, for holding judicial inquiry, the learned Magistrate, who carried out judicial inquiry, submitted a report holding that there is prima facie case against the accused-petitioners under sections 315 and 316 of the Penal Code and on the basis of judicial inquiry report cognisance was taken against the accused-petitioners under sections 315 and 316 of the Penal Code on 10-07-2001 whereupon the accused-petitioners moved the High Court Division and obtained Rule in which further proceeding of the case was stayed.

4. Mr. Khondker Mahbubuddin Ahmed, the learned Senior Counsel, appearing' for the petitioners, submits that there is no Ingredients of the offence under Sections 315 and 316 of the Penal Code and the proceeding being an abuse of process of law and as such, the case is liable to be quashed. He further submits that the allegations if taken to be true then the accused-petitioners at best can be prosecuted for their negligence and not for the office alleged to have committed under Sections 315 and 316 of the Penal Code and as such the proceeding should be quashed as continuation of the same would cause unnecessary harassment. He incidentally submits that if at all there is criminal negligence, that can at best be vest upon accused-petitioner No.2, Dr. Ruhi Morshed and not upon the accused-petitioner No.1 Dr. Hafizur Rahman on whose part there was no negligence who at the earliest opportunity after his anivai in the clinic operated the informant opposite-party though the operation was not successful and accordingly he contends that the proceeding being not in conformity with the provision of Sections 315 and 316 of the Penal Code should have been quashed.

5. It is not disputed that the informant opposite-party was under the treatment of Dr. Hafizur Rahman in his Mother and Child Care Centre. It further appears that there is no allegation to the fact that the informant opposite-party ever did not comply with the advice/direction of Dr. Hafizur Rahman.

It also appears that the informant opposite-party No.2 went to the aforesaid Mother and Child Care Centre out of labour complain and the accused petitioner No.2, Dr. Ruhi Morshed on duty along with a nurse took her to labour unit of the clinic where she told Dr. Ruhi Morshed for taking steps for delivery by operation as was told by the accused-petitioner No.1, Dr. Hafizur Rahman but the accused-petitioner No.2, Dr. Ruhi Morshed did not take any step for operation instead of she tried for normal delivery inasmuch as on the following day on 26-1-2000 the accused-petitioner Dr. Hafizur Rahman entered into the labour room and rebuked the accused petitioner Dr. Ruhi Morshed, who took her for operation after 8.15 hours, the accused-petitioner No.1, Dr. Hafizur Rahman made operation for the purpose of delivery, who told her that she gave birth a 'dead female child. It is specific allegation of the informant that due to negligence on the part of the accused-petitioners, she gave birth to a dead child. It appears from the record that the charge has not yet been framed.

6. An accused may invoke the jurisdiction of the High Court Division under Section 561 A of the Code of Criminal Procedure, if, he can make out a case of quorum non judice of the trial Court or that the facts alleged do not constitute any criminal offence.

The High Court Division may exercise inherent power to quash a proceeding or even conviction on conclusion of trial if the Court concerned got no jurisdiction to hold the said trial or the fact alleged against the accused does not constitute any criminal offence. A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the record of the High Court Division.

As to whether the accused-petitioners were negligent of their duties or they acted beyond their duty and their action had ultimately taken away the life of child in the womb of the informant opposite-party No.2 is still to be tried after examination of the witnesses and in view of the facts and circumstances of the case, we are of the opinion that entertainment of the prayer seeking quashing of the proceeding at the stage will be stifling the proceeding since the informant opposite; party No.2 had no opportunity to prove her case by adducing evidence and as such we are of the opinion that there is no sub-stance in this petition and find no other alterative but to dismiss the same.

7. In the result, the petition is dismissed.