JUDGMENT 1. This is an appeal against a conviction, by the Chief Presidency Magistrate of Calcutta, of the accused, under sees. 482 and 486 of the Indian Penal Code and sees 6 and 7 of the Indian Merchandise Marks Act (IV of 1889). Mr. Chaudhuri, the learned Counsel who has appeared on behalf of the complainant, admits that the conviction under sees.. 6 and 7 of the Indian Merchandise Marks Act cannot be sustained, because the accused person admittedly has not been guilty of applying a false description to his goods or of selling goods to which a false description has been applied; and we agree with him on this point. The only question, therefore, which we have to consider is whether the accused can be convicted under sees. 482 and 486, I.P.C, that is to say, of using a false trade mark, or of selling goods to which a counterfeit trade mark has been applied. In our opinion the conviction of the accused under these sections cannot be sustained. The accused Surja Pershad had opened a shop in close proximity to the shop of the complainant. He sells rose-water in bottles which certainly are similar to those which contain the rose-water sold by the complainant; and he has applied labels to his bottles which, at first sight, certainly seem a colourable imitation of the labels used by the complainant. But on comparing the labels used by the accused with those of the complainant, we see great differences between them. The figure of the rose used as the trade mark of the accused is quite different from the figure of that flower which is used by the complainant as his trade mark. The complainant's rose is enclosed within a circular lozenge; but no lozenge encloses the trade mark of the accused. There is a flower in each of the four corners of the complainant's labels; but there are no flowers at the corners of the label of the accused. Then, no doubt, the inscriptions round the two labels are very much the same. But the Bengali writing at the foot of the complainant's label consists of three lines: whereas the writing at the foot of the label of the accused consists of two lines only. 2. Then, no doubt, the inscriptions round the two labels are very much the same. But the Bengali writing at the foot of the complainant's label consists of three lines: whereas the writing at the foot of the label of the accused consists of two lines only. 2. On the whole, therefore, we do not think it can be said that the accused has been guilty of using a false trade mark or of selling goods bearing a counterfeit trade mark. 3. We may add that we agree with the opinion expressed by the learned Chief Justice in the case of Dowlat Bam v. The King-Emperor ILR 32 Cal. 431 (1905), namely, that a case in which there is a bond fide dispute between the parties as to the right to use a trade mark should be taken before a Civil and not before a Criminal Court. 4. We set aside the conviction of, and sentences passed on, the accused under each of the sections named above; and we direct that the fines, if paid, be refunded. The goods and labels will be returned to the accused.