GURBAX RAI Vs. VIDYAWATI

JUDGEMENT

(1.) In this case both the plaintiffs and the defendants carry on the trade in manufacture and sale of steel balls. The plaintiffs are trading under the trade mark 'NOVA' and the defendants under the trade merk 'JANI'. The plaintiffs pack and market the steel balls in their artistic carton entitled 'NOVA'. The salient features of the plaintiffs' carton are that 4/5th side panel are red throughout the length and breadth of the carton. On the length side of the penal the expression 'NOVA' Ball Bearing Industries, Delhi-35" is written in white. The breadth side panel indicate the description 'Size 1/4' and "12 Gross" respectively. The upper side panels .have blue and white squares with a red band in the centre bearing the trade mark 'NOVA' Steel balls. There is also a red circle in one of the upper side panels in which the initials of the Plaintiffs' firm SNB appear prominently. The carton of the Plaintiffs it marked Annexure'A' to the plaint. The plaintiffs got the copyright of their artistic carton registered in 1978.

(2.) The case of the plaintiffs is that the. defendants are packing and marketing their products in cartons having same colour scheme, get-up, lay out and arrangement as that of the plaintiffs' cartons and that the above is not a matter of chance but a deliberate attempt to deceive the unwary class Of purchasers and to earn profits in illegal manners. The plaintiffs alleged that the steel balls are generally purchased by illiterate cycle mechanics, servants workmen etc. and that the sale of the goods by the defendants in the cartons in question are likely to be passed off as that of the plaintiffs.

(3.) The defendants in their written statement have pleaded that the plaintiffs have no exclusive right to the square device get up and that there is nothing artistic about it. It is alleged that manufacturers and dealers in several trades including cycle goods medicinal products, cloth trades etc. are using cartons bearing the square device. The defendants have further alleged that the main feature of the respective cartons is the trade mark of the parties, that is, 'NOVA' and 'JANI' which are dissimilar visually as well as phonetically and there is no chance or occassion in the purchaser mistaking the goods of the defendants as that of the plaintiffs. It is further pleaded that the defendants' carton bear the mark 'JANI' as a trade mark at 5 places which clearly distinguishes the carton of the defendants from that of the plaintiffs.