MANMOHAN GARG Vs. RADHA KRISHNA NARAYAN DAS

JUDGEMENT

(1.) The respondent filed a civil suit in the court of the District Judge. Bhopal seeking relief of permanent injunction and damages on the allegations that the appellant/defendant was using a deceptively similar label and passing off the bidis manufactured by him as the bidis manufactured by the plaintiff. The plaintiff claimed damages besides permanent injunction and an order to restrain the defendant/appellant to sell the bidis with the label Khargosh Chhap. A decree for accounts was also prayed for. The trial court dismissed the suit on 16/3/1981. The first appeal filed by the respondent against the judgment and decree dated 16/3/1981 succeeded before the learned Single Judge of the High court on 19-2-1991. The learned Single Judge held that the plaintiff had established infringement of his registered Trade Mark No. 112689 by the defendant by reason of a deceptive similarity between the mark used by the defendant and the plaintiff's registered trade mark. Against the order of the learned Single Judge, the appellant herein filed a letters patent appeal. A division bench of the High court dismissed the letters patent appeal on 20/12/1985. Hence this appeal by special leave.

(2.) Briefly stated, the facts are: Trade mark of bidis, Khargosh Chhap, was first registered with the Sub- Registrar of Bombay on 26/1/1928 and thereafter it was registered under the Trade Marks Act, 1940 on 14/8/1945 in favour of the plaintiff/respondent in respect of the bidis to be sold under that trade mark throughout the territories of India except Madras and Mysore. The trade mark was registered under Registration No. 112689. It appears that the plaintiff/respondent subsequently also got registered the jhilli (tissue paper wrapper) on 2/7/1954 under Registration No. 164797. According to the plaintiff/respondent, looking to the popularity, reputation and sale of the plaintiff's Khargosh Chhap bidis, the defendant/appellant started selling bidis using a label which was deceptively similar to and was a colourable imitation of the plaintiff's Khargosh Chhap bidis, both in respect of the design, layout, get-up and the colour scheme. It was on these allegations that the plaintiff/respondent had filed the suit seeking relief of permanent injunction and damages etc.

(3.) The learned Single Judge as well as the division bench of the High court, on the basis of the evidence on the record, have recorded categorical findings that the appellant's labels used on the bidis manufactured and sold a by him were deceptively similar and identical to the plaintiff/respondent's label on the bidis bearing trade mark Khargosh Chhap. It has also been found by the High court that the trade mark Khargosh Chhap had been registered prior in point of time than the trade mark Goat Cub of the appellant.