MANGALORE R K BEEDIES Vs. MOHAMMED HANEEF

JUDGEMENT

(1.) The unsuccessful plaintiff in a suit for permanent injunction in a passing off action, in the appellant in this appeal. The suit filed by the appellant in O.S. No. 2 of 1991 on the file of the District and Sessions Judge, Mangalore was dismissed by the judgment and decree dated 17-9-1991. For convenience, the parties will be referred to by their respective ranks in the suit.

(2.) The plaint averments in brief are: The plaintiff is a partnership firmengaged in the business of manufacturing hand made branded beedies under the tradename and style 'MANGALORE R.K. BEEDIES' and selling them in several States including Karnataka, Goa and Maharashtra. The licensing authority under the Central Excise and Salt Act, has approved the lable and wrappers with the aforesaid trademark and granted a licence in the year 19S6. The beedies manufactured by the plaintiff have earned a good reputation and market on account of their good and exquisite quality. The plaintiff is the proprietor of the distinctive trademark 'MANGALORE R.K. BEEDIES'. The plaintiff has been continuously and extensively using the said trademark since 1974 and had incurred large amounts for popularising the said brand. Their application for registration of the trademark was pending. The defendant being aware of the popularity of the plaintiffs trade name and mark, commenced manufacturing beedies of inferior quality under the trademark 'NEW MANGALORE R.K. BEEDIES' and the said name and mark was deceptively similar to the popular trade name and mark of the plaintiff and the defendant was misleading the public by passing off inferior qualify beedies as beedies manufactured by the plaintiff and thereby the business of the plaintiff was adversely affected. If the defendant continued to pass off his beedies under the said name and trademark, the plaintiff will be put to irreparable loss and hardship. In spite of issue of notice da ted 6-12-1990 calling upon the defendant to desist from using similar trademark and name, the defendant failed to do so. On these averments, the plaintiff sought a permanent injunction to restrain the defendant from manufacturing and selling beedies under the name and style 'NEW MANGALORE R.K. BEEDIES' which was deceptively similar to their trademark, 'MANGALORE R.K BEEDIES'.

(3.) The defendant resisted the said suit inter alia on the contentions that the plaintiff started manufacturing beedies under the name 'MANGALORE R.K. BEEDIES' only from the year 1986 and not from 1974; that the name 'MANGALORE R.K. BEEDIES' was not a trademark as there was nothing distinctive of special about it; nor did the said name indicate any connection to the plaintiff; that plaintiffs beedies under the name 'MANGALORE R.K. BEEDIES' had not gained any popularity nor was the said beedies in any way superior to the beedies manufactured by the defendant; that the defendant used the name 'R.K.' as it referred to the religious name 'RASOON KAREEM' and his trademark 'NEW MANGALORE R.K. BEEDIES' was distinct and popular on its own; that the design on the wrapper of the beedies manufactured by him was distinct from the wrappers of the plaintiff and there is no room for any confusion or passing off. He also asserted that when he started manufacturing beedies under the name and style 'NEW MANGALORE R.K. BEEDIES', he was not even aware that plaintiff was manufacturing beedies under the name 'MANGALORE R.K. BEEDIES'. As there was no registered trademark, there was no question of infringement thereof and there was no basis for passing off action. Therefore the suit was not maintainable and was liable to be dismissed.