HAMDARD DAWAKHANA Vs. HANS RAJ

JUDGEMENT

(1.) The plaintiffs have brought this suit alleging infringement of registered trade marks of their syrup "Rooh Afza" and for passing off this syrup by the defendants. The plaintiffs aver that trade mark "Rooh Afza" is registered under trade marks Nos. 3007, 138780 and 173555 in Class 32. The first trade mark was registered on May 17, 1949. Thereafter, the registration has been duly renewed from time to time. Plaintiffs No. 2 are the registered proprietors of the, trade marks and have appointed plaintiffs No. 1 as the registered users of the same. Defendant No. 1 is stated to have started manufacturing, selling and offering for sale his sharbat under the trade mark "Rooh Afza". He is id to have imitated the general get-up, lay out and colour scheme of the plaintiffs' labels with respect to the same. Defendant No. 2 is the person through whom defendant No. 1 introduced his product in the market at Delhi. Defendant No. 2 in his written statement admitted selling defendant No. 1's syrup under the name "Sharbat Rooh Afza Muraqab (medicated)." Defendant No. 1 denied that defendant No. 2 was his agent or in any way linked with him for selling his syrup. He also averred that his forefathers had been Hakims and had introduced the prescription of syrup "Sharbat Rooh Afza Muraqab" sometimes in 1888. He also denied any similarity between the packages, bottles and general get-up. Defendant No. 2 compromised the subject matter of the suit with the plaintiffs and a decree in terms of the compromise was passed in favour of the plaintiffs and against this defendant on February 2. 1971.

(2.) On the pleadings of the plaintiffs and defendant No. 1, following issues were framed:

(3.) I have seen the bottles Exhibits Public Witness 3/3 and Public Witness 4/1 belonging to the plaintiffs and defendant No. 1 respectively. I find that the plaintiffs are using the word "sharbat" along with their registered trade mark "Rooh Afza". Defendant has used? the words "Sharbat Rooh Afza Murakab (medicated)." Words "Rooh Afza" are common. The word "sharbat" used by the parties only denotes the fact that the article sold is a syrup. The word "murakab" used by the defendant is also a generic term meaning that the sharbat is made up of various constituents. The word "medicated" is again a generic term.