PRINCE RUBBER INDUSTRIES Vs. K.S. RUBBER INDUSTRIES

JUDGEMENT

(1.) The plaintiff firm claims that it is engaged in the business of manufacturing footwear of all kinds, which is marketed by it under the trade mark of 'PAYAL' label with a device on the lower half portrait of a dancing girl, wearing a Payal in each of the two ankles. This device is registered in the name of the plaintiff under the Trade and Merchandise Marks Act, 1958 at No. 232152 in class 25 in respect of footwear of all kinds. Accordingly, the plaintiff claims that he has acquired the exclusive right to use of the said trade mark in respect of the aforesaid goods. The said registration is still subsisting. The trade mark of the plaintiff was adopted by it 1965 in respect of footwear of all kinds and it is claimed by the plaintiff that it has been continuously using the trade mark in respect of the aforesaid goods since 1965 upto the present time. The plaintiff also claims that it has extensive business in the sale of footwear bearing the said trademark and the footwear marketed by the plaintiff with this trade mark has become distinctive and associated with the name of the plaintiff firm so both by long user and because of the registered trade mark, the plaintiff claims the exclusive user of the device registered at No. 232152.

(2.) The defendant is also a dealer and manufacturer of canvas rubber shoes and other types of chappals and according to the plaintiff; has recently started selling such footwear under the trade mark 'JHANKAR' label, which, it is claimed, is identical with and deceptively similar to the trade mark of the plaintiff. It is alleged that the defendants has adopted the impugned trade mark in order to pass off its goods as those of the plaintiff by taking advantage of the business built up by the plaintiff and the good name and popularity it commands for its products in the market. The defendant, according to the plaintiff, has thus infringed the plaintiff's right in respect of its trade mark, the motive being to deceive the purchaser and to cause confusion or deception in trade and to take advantage of the reputation acquired by the plaintiff, thereby to earn profits in an illegal manner by passing off their products as the products of the plaintiff. According to the plaintiff, as soon as it came to know of the infringement and passing off, it called upon the defendant by a notice dated 23rd March, 1971, issued by its counsel, to desist from the wrongful acts of infringement and passing off but as he failed to comply with the demand in the said notice, the plaintiff has filed the present suit for permanent injunction restraining the defendant from using the impugned trade mark, the permanent injunction restraining the defendants from passing off their goods as the goods of the plaintiff, to render account etc.

(3.) Along with the plaint the plaintiff also filed I. A. No. 950 of 1971 praying for an interim injunction restraining the defendant from using the impugned trade mark 'JHANKAR' and the table used by him in footwear.