KEDAR NATH Vs. MONGA PERFUMERY AND FLOUR MILLS

JUDGEMENT

(1.) This oder disposes of I. A. S. 1032 and 1680 of 1972. The plaintiff has instituted a suit for permanent injunction restraining the defendant from infringing the plaintiff's registered trade mark and copyright and from pass- ing off his goods as those of the plaintiff. The plaintiff also claims rendition of accounts. The material facts as stated in the plaint are that the plaintiff is a manufacturer and seller of Dhoop and Agarbatti and is trading under the name and style of Mysorewala Suga.ndhit Dhoop Factory at Delhi. The plaintiff is manufacturing and selling dhoop under the trade mark SUDERSHAN which is in regular and continuous use since the year 1954. The plaintiff's trade mark SUDERSHAN is registered under the Trade and Merchandise Marks Act. 1958. The plaintiff also holds copyright registration relating to the artistic representation of its cartons pertaining to SUDERSHAN DHOOP BATTI. It is alleged that by virtue of the aforesaid registration as well as by long and established user and wide publicity the plaintiff has acquired right to the exclusive use of SUDERSHAN trade mark in relation to DHOOP BATTI so much so that the use of any such or similar trade mark with or without any prefix or suffix by another trader is bound to cause confusion and dhoop of such manufacturer is liable to be associated with the plaintiff's goods and his business. Defendant is also a manufacturer of dhoop and it is alleged that he has deliberately infringed the plaintiff's trade mark SUDERSHAN and has also copied artistic design relating to the plaintiff's cartons and wrappers. The defendant has introduced its dhoop with the trade mark SUDERSHAN prefixed by the word VIJAY in small print on its cartons and wrappers. The defendant is also a printer as he is running his own press and is printing infringing cartons, labels, seals and wrappers bearing SUDERSHAN trade mark with the word VIJAY in small size added thereto. The defendant is infringing the plaintiff's trade mark by printing the cartons at his own press and by using a mark which is a colourable imitation and deceptively similar to the plaintiff's SUDERSHAN DHOOP. It is alleged that the defendant has deliberately copied the trade mark and the design of the wrapper and the cartons pertaining to the plaintiff in order to deceive the public and in order to to earn profits to which he is not entitled and in order to trade upon the goodwill and reputation acquired by the plaintiff. The plaintiff has filed his cartons of SUDERSHAN dhoop which are marked A and B, while the cartons of the defendant have been marked C and D. The plaintiff has also alleged that the defendant's business is of recent origin as compared to the old and established business of the plaintiff. The plaintiff Got his trade mark registered on September 28 1960. The plaintiff claims a decree for permanent injunction restraining the defendant, its servants, agents and representatives from infringing the trade mark SUDERSHAN belonging to the plaintiff in relation to dhoop-batti. The plaintiff has also claimed an injunction restraining the defendant from reproducing, printing wrappers, cartons, labels, seals or artistic representation amounting to infringement of copyright.

(2.) The defendant has filed his written statement. The main defence of the defendant to the suit is that the registration of the trade mark has been obtained by the plaintiff mala fide and illegally. The defendant says that he has been carrying on the business since 1952 and it is the plaintiff who is guilty of piracy of the defendant's trade mark. It is denied that the plaintiff came into business in 1954. According to the defendant the plaintiff started his business in 1965. It is further stated that the defendant has been trading in dhoop and agarbatti since 1952 and has been selling dhoop and agarbatti under the trade name of VIJAY SUDERSHAN, VIJAY DURGA & VIJAY SUDAMA in case of dhoop-batti and has been using the cartons, wrappers and other packing material since 1952. It is also claimed that the defendant's goods are distinguishable on account of cartons and packing materials used by him. It is further alleged that the defendant has by long and extensive use established a large sale and fair reputation in the quality of his goods. The plaintiff came into business very much later and clandestinely got registered his trade mark with the object to pass off his goods as goods of the defendant. It is stated that the defendant intends to file a petition for the rectification of the register of trade marks. It was not denied that the defendant owned a printing press and printed his cartons. wrappers etc. for his use for the sale of dhoop.

(3.) In the replication filed by the plaintiff, it is stated that the defendant started business only in the year 1964-65. At this time the defendant applied for sales tax registration and obtained a sales tax registration number on January 22, 1965. The plaintiff states that he obtained his sales tax registration number on January 7, 1957.