JUDGMENT Stephen, J. - The Appellants in the present case have been convicted on charges under secs. 482 and 486 of the I.P. Code, as amended by the Indian Merchandise Marks Act, 1889, of using a false trade mark, and selling goods marked with a counterfeit trade mark, and under sec. 6 of the Merchandise Marks Act, of applying a false trade description to goods, and they are now appealing against these convictions. The main facts in the case are simple and are undisputed. Since December 1900 the opposite party have been selling fish-hooks, which they have imported from Europe, in packets bearing labels on which appears a design of two fish crossed, with their heads and tails bent up. These fish-hooks have been generally known in Calcutta as mach marka (fish mark) and have commanded a large sale. The boxes, labels and designs have been made exhibits, but we need only notice the design of two fishes which for present purposes may be conveniently referred to as mark A. During the season 1903 the Appellants sold fish-hooks in similar boxes, bearing similar labels, and a design of one fish with its head and tail turned up. These boxes, labels and designs have also been made exhibits, but again we need only notice the design of one fish, which we will refer to as mark E. 2. No point has been raised before us on the similarity of the boxes and labels, as it is admitted that their shape and appearance are what are usual in the trade, and the inscription on the label bearing mark E, is different from that on the label bearing mark A; the name of the maker in particular being truly given. But it is alleged that mark E is a fraudulent imitation of mark A, and that it is devised to enable the Appellants to sell their fish-hooks as mach marka. 3. Under these circumstances the opposite party's contention is that mark E is a false trade mark, which for present purposes we may take to be the same as a counterfeit trade mark, and that they have applied the name mach marka to their goods as a false trade description. 4. It has not been argued before us that mark E is in itself a false trade mark, as being such a mark as is mentioned in sec. 4. It has not been argued before us that mark E is in itself a false trade mark, as being such a mark as is mentioned in sec. 480 of the Indian Penal Code, but merely as being a mark to which the term mach marka, is likely to be, and indeed is intended to be applied. It is also to be noticed that a trade description as defined in sec 2 of the Merchandise Marks Act does not include such marks as mark E but that such marks are brought within the scope of sec. 6 of the Act by the operation of sec. 4, cl. 1. Whether we consider the case of a false trade mark or of a false trade description we have first to consider, what is the real point of the case, namely, whether the mark or description is false. And in this present case the point seems to depend on whether the application of the term mach marka is in the language of sec. 480 of the I.P. Code or sec. 4, cl. 1 of the Merchandise Marks Act " reasonably calculated to cause it to be believed (or to lead persons to believe)" that the fish-hooks sold under mark E are the merchandise of the opposite party. How far in fact does the law allow a man to appropriate to his own use a name which is suggested by his trade mark ? That it does so to some extent is plain from various well-known cases. In Seixo v. Provezende L.R. 1 Ch. 192 (1865) quoted in Kerly on Trade marks (2nd Ed., 1901), at p. 240, Lord Cranworth says "the Defendants have adopted a trade mark which could not fail to lead purchasers to attribute to the wines so marked the same name as that under which the Plaintiffs' wines were known and so to believe that in purchasing them they would be purchasing the wines of the Plaintiffs." The facts of that case however seem to be essentially different from those before us. Without considering how far a principle that was followed in an application for an injunction, ought to be followed in a criminal case, it must be observed that in that, case the public was directly invited to adopt the use of a definite word, though that word was a common one. Without considering how far a principle that was followed in an application for an injunction, ought to be followed in a criminal case, it must be observed that in that, case the public was directly invited to adopt the use of a definite word, though that word was a common one. In the present case, as put forward by the Respondents, the public have chosen a name for their own use; and if the difference between the two kinds of fish-hook is noticeable enough to make the public care to distinguish between them the difference between one fish and two fish is marked enough to afford a very simple method of distinction. The facts in the milkmaid case, Anglo-Swiss Condensed Milk Company v. Metcalf 31 C.D. 454 (1886) are too different from the present facts for that case to afford us much assistance. In the Two Elephant case, Jonston v. Orr Ewing 7 App. Cas. 219 (1882) both marks contained two Elephants which clearly distinguishes it from the present case. 5. A good deal of argument has been addressed to us by counsel on behalf of the Appellants as to the effect of the decisions in the Camel Hair Belting case, Reddaway v. Banham (1896) App. Cas. 199 (1896) and Cellular Clothing Company v. Maxton (1899) App. Cas. 326 (1899) which is distinguished from that case. As to these cases we have only to say that applying as they do to descriptive names they cat) have no application to the present case, since a picture of a fish can hardly be held to be a description of a fish-hook. In the present case, applying as far as we can the principles laid down in the cases we have quoted, and the sections to which we have referred, we do not think that the fact that mark A was known as mach marka can be held to prevent other persons from applying a mark to fish-hooks which may be generally known by the same term, The Respondents' right to the exclusive use of a mark which may acquire such a designation, is at least not plain enough for us to consider it proved as against a person charged with an offence. The essential feature of the design is, in our opinion, too common and too apt for application to fish-hooks, for a name based on it to be reasonably calculated to mislead. We do not consider, therefore, that apart from the facts of the case, Mark E is a false trade mark merely because it is or may be known as mach marka when that name is already applied to mark A. And the same remark applies to mach marka considered as a trade description. 6. We must however examine the facts of the case to see whether, or how far, any inference to be drawn from them conflicts with this view. If it appears that purchasers were misled by mark E or the use of the term mach marka into believing that the Appellants' goods were the merchandise of the Respondents, this will go a long way to prove that the mark was calculated to produce this effect. If we find that the mark was devised to produce this effect we shall probably be confirmed in this opinion. 7. It is not disputed that the term mach marka has been applied to the Respondents' fish-hooks since they were first put on the market. There is also evidence, which on the whole we believe, that the Appellants supplied mark E fish-hooks when asked for mach marka. There is an a priori likelihood that this would be so, and the attempt made on behalf of the Appellants, to prove that mark A fish-hooks were asked for under the name fore mach marka, while these were called ek mach marka seems to point in the same direction. The evidence that any one was misled by the Appellants supplying the E mark as mach marka is less satisfactory. We may suppose that the witness, Shaik Yacoob, intended to represent himself as misled though he did not specifically say so. Mahomed Ali's evidence went to show that he would have been misled, had he not been buying mark E on behalf of the Respondents; but we cannot place much reliance on his evidence. Ismail bought mark E as mach marka but he does not profess to have been misled by the mark itself; on the contrary he noticed the difference of the mark from that to which he was accustomed and made enquiries about it. Ismail bought mark E as mach marka but he does not profess to have been misled by the mark itself; on the contrary he noticed the difference of the mark from that to which he was accustomed and made enquiries about it. Fanindra Nath, the Appellants' gomasta, gave evidence that he did not sell mark E to Mahomed Ali as mach marks, but this we do not wholly believe. There is no doubt some evidence of direct fraud by the Appellants in passing off mark E to Ismail as the Respondents' goods; but it is too vague and uncertain for us to rely on. A voucher was given to Mahomed Ali in which the hooks supplied to him are described as mach market and it is alleged that the description was put in and then struck out (Ex. F). But the insertion and erasure have not been explained in the evidence and convey nothing to our minds. 8. Considering all the evidence on the subject, we find nothing in it to cause us to modify the opinion we have already expressed to the effect that mark E is not a false trade mark or a false description in the sense we have mentioned. We have not to decide, and we do not decide, whether the Appellants were justified in using mark E or in supplying their own fish-hooks when asked for A mach marka. But we do hold that they have not committed any of the offences with which they have been charged. 9. It only remains to add that we need not determine whether the Appellants have proved that they acted without an intent to defraud. Their evidence on this point almost entirely consists of the indent containing the order for the mark E. fish-hooks, in which no mention is made of any mark (Ex. 5A). This goes some way to prove the point, but falls short of satisfactory proof. We much regret that recourse has been had to the criminal law to settle the matter at issue between the parties. The result is that nothing has in fact been decided, and that the present proceedings have had no useful result. The appeal is allowed, the conviction and sentence being set aside. The fine, if realised, will be refunded.