B N AND COMPANY Vs. BUNNA GENERAL STORE

JUDGEMENT

(1.) Appellant M/s. B.N. and Co., (defendant No. 1 before the Trial Court) has assailed the impugned order dated 31.3.1980 by which perpetual injunction has been granted against appellant beside challenging the order for rendition of accounts of profit made by the appellant together with an order for delivery-up for the infringing labels and marks etc. for destruction. Appointment of Local Commissioner to go into the accounts of the appellant has also been assailed.

(2.) The grievance of the appellant/defendant to the impugned order is primarily based on two grounds namely: (1) that the trade mark "Kesh Nikhar" of the respondent (plaintiff before the Trial Court) is not distinctive, therefore, the respondent/plaintiff could not claim exclusive right. Moreover, appellant has filed objections to registration of the trade mark "Kesh Nikhar" before the Registrar of Trade Mark, hence it could not be said that this mark becomes conclusive under Section 32 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the (Act); (2) that the word "Kesh Nikhar" is not a registered trade mark, but only a part of the trade mark of the respondent /plaintiff in relation to carton. The word "Kesh Nikhar" is a common word used in commonparlance for "Kesh" means hairs and "Nikhar" means cleanliness. It being not distinctive but descriptive the alleged registration is hit by Clause (c) of Section 32 of the Act.

(3.) In order to appreciate the challenge to the impugned judgment, we may refer to some salient as well as admitted facts on record. Respondent/plaintiff has been dealing in the business of manufacturing soap. It got registered its soap under the trade-mark "Kesh Nikhar" labeled with a device of woman combing hair. The said trade mark was registered with the Registrar of Trade Marks on 17.7.1963 in Class 3 of the IV Schedule of the Act. The said registration still continues. Respondent/ plaintiff's case was that he had given wide circulation and publicity to its registered trade mark by advertisement through different media such as newspaper, trade magazines, display boards, calendars and novelties and affixing hoardings at prominent places in different cities asalso through cinema slides and Vividh Bharti of All India Radio. As a result of this wide publicity this trade mark of the respondent/plaintiff acquired a distinctive character and a good reputation in the market associated with the respondent/plaintiff. Admittedly the appellant/ defendant No. 1 adopted the trade mark "Kesh Nikhar" labeled with device of woman combing hair in respect of his soap somewhere in July, 1973. According to respondent/plaintiff, appellant in order to deceit the innocent customer and to confuse them used the word "New Pad" on its label. This according to respondent amounted to deceiving the customer, into purchasing the appellant/defendant's goods under the impression that they were buying plaintiff's goods. Because of this infringement and passing-off respondent/plaintiff has suffered losses. The rectification sought by the appellant/defendant had in fact been abandoned by him. Having abandoned the same and subsequently never ever assailed the order thus the registration of the trade mark by the appellant became final and conclusive. It attained finality.