2003 (12) TMI 465 - AT - Customs

Summary

Issues:
1. Infringement of Section 77 of the Trade and Merchandise Marks Act, 1958 by the appearance of the "HP" logo on recycled inkjet cartridges.

Analysis:
The issue in the appeal pertains to the alleged violation of Section 77 of the Trade and Merchandise Marks Act, 1958, due to the presence of the "HP" logo on imported recycled inkjet cartridges. The appellants imported cartridges declared as Expert Recycled Inkjet Cartridges for HP printers, but upon examination, it was discovered that these cartridges contained old PCB and other parts, along with the HP marking. The central question is whether the presence of the HP logo constitutes the use of the HP brand, thereby infringing Section 77 of the Act.

The lower authorities concluded that the existence of the HP logo amounted to a breach of trademark, a contention disputed by the appellants. The imported cartridges, supplied by an overseas supplier, were meant to be sold under the brand name "Expert." Despite this, the cartridges bore the engraved HP logo, indicating their reconditioned nature from old inkjet cartridges. The decision on whether this constitutes a breach of the Trade and Merchandise Mark Act, 1958, falls within the purview of competent authorities, and customs cannot preemptively determine this issue. Section 77(1) of the Act specifies that falsifying a trademark or creating a deceptively similar mark is an offense, but in this case, the trademark itself has not been altered.

Moreover, the appellants did not request goods bearing the HP mark, and the recycling process naturally leads to situations where old markings persist. In the interest of justice, the appellants' plea to either clear the goods after removing the HP logo or re-export them warrants reconsideration. Consequently, the orders of the lower authorities are set aside, and the matter is remanded to the Assistant/Deputy Commissioner for fresh orders within three months, ensuring adherence to the principles of natural justice. The appeal is allowed for a de novo remand to the adjudicating authority.