Complaint maintainability under trademark law turns on absence of a statutory bar to filing by a non-owner.

Unless a special statute expressly restricts who may lodge a complaint, a Magistrate may take cognizance of an offence on a complaint setting out facts constituting that offence. The Trade and Merchandise Marks Act, 1958 contained no contrary restriction for offences under Sections 78 and 79, so the general rule under the Code of Criminal Procedure applied and any person could set the criminal law in motion. A complaint could not be rejected merely because the complainant was not the registered proprietor, particularly where he was a dealer and constituted attorney of the registered owners. The refusal to issue process and dismissal of the complaint on that ground were erroneous, and the complaint was maintainable.

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Issues: Whether a complaint for offences under the Trade and Merchandise Marks Act, 1958 could be rejected at the threshold on the ground that the complainant was not the registered owner of the trade mark and therefore had no authority or cause to file the complaint.

Analysis: Under Section 4(2) of the Code of Criminal Procedure, 1973, offences under other laws are to be dealt with under the Code unless the special statute provides otherwise. Section 190 of the Code enables a Magistrate to take cognizance upon receiving a complaint of facts constituting an offence and does not prescribe any special qualification of the complainant. The absence of a contrary provision in Section 89 of the Trade and Merchandise Marks Act, 1958 for offences under Sections 78 and 79 meant that the general rule applied and any person could set the criminal law in motion. The complainant also had a direct and subsisting interest as a dealer and constituted attorney of the registered owners, so the complaint could not be rejected merely because he was not himself the registered proprietor.

Conclusion: The refusal to issue process and the dismissal of the complaint solely on the ground of lack of complainant qualification were erroneous and unsustainable; the complaint was maintainable.

Ratio Decidendi: Unless a special statute expressly restricts who may lodge a complaint, a Magistrate may take cognizance of an offence on a complaint by any person setting out facts constituting the offence, and the complaint cannot be rejected merely because the complainant is not the registered owner or otherwise specially qualified.

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