PRIMA CHEMICAL WORKS Vs. SUKHDAYAL

JUDGEMENT

(1.) This is a defendants' appeal against the order of the Additional District Judge dated September 29, 1970.

(2.) The material facts for the decision of this appeal may briefly be stated thus:

(3.) The allegations of the plaintiffs as laid in the plaint are as follows- The plaintiffs are the partners of the business styled as 'M/s. Sukhdayal and Sons' and they carry on their business at Delhi. One Haji Ehsan Elahi, proprietor of the firm Haji Shamsul Haq and Sons was carrying on business at Fatehpuri Bazar, Delhi as manufacturing chemist. He was the proprietor of the trade mark 'Sun Brand Hair Dye 929'. On July 7, 1947, at Delhi Haji Ehsan Elahi took Sukhdayal (plaintiff No. 1) as partner in the business. A partnership deed was executed between them and the partnership started business in the same premises No. 34-35, Fatehpuri Bazar, Delhi, under the name and style 'M/s. Sukhdial and Co.'. It was alleged that the partnership-firm continued manufacturing and selling 'Sun Brand Hair Dye 929' and this trade mark and goodwill became the property of the partnership. The firm Sukhdial and Co. was dissolved on January 24, 1948 and the business of the firm including the stock in trade, assets, tenancy rights, goodwill and right to use the trade mark 'Sun Brand Hair Dye 929' were taken over by Sukhdayal (plaintiff No. 1) for consideration from Haji Ehsan Elahi who left India and settled in Pakistan. It was averred by plaintiff No. 1 that the trade mark in question became his exclusive property. Thereafter plaintiff No. 1 took plaintiffs Nos. 2 and 3 as partners in the business and the name of the business was changed to 'Sukhdial Bhatia and Sons'. Since the year 1948, the plaintiffs have been using the trade mark/label 'Sun Brand Hair Dye 929' continuously and extensively. The plaintiffs claim that their trade mark has become distinctive of their hair dye and the purchasers recognise and demand their goods by the name of their trade mark 'Sun Brand Hair Dye 929' or simply as 'Sun Brand Hair Dye' and recognise it by the distinctive multi-coloured cartons.