BAWA MASALACO Vs. GUIZARI LAL LAJPAT RAI

JUDGEMENT

(1.) The appellant/plaintiff brought an action against the respondent/defendant for infringement of a registered trade mark and passing off. It was prayed that the respondent be restrained by means of a permanent injunction from infringing the registered trade mark of the appellant either by itself or through its servants, agents etc; respondent be restrained by means of a perpetual injunction from using the registered mark of the appellant or any other mark deceptively similar to the said registered mark; render accounts to the appellant of the profits earned by the respondent by sale of goods under the alleged offending mark and pay the amount found due on such rendition of accounts to the appellant; the respondent should deliver unto the appellant for destruction all cartons bearing the infringing trademark, all blocks, dies, printed matter, stationery bearing the offending mark; and pay costs of the suit filed by the appellant against the respondent.

(2.) The claim of the appellant as set out in the plaint was that it was a registered partnership carrying on business in spices and chillies etc. Bawa Sardar Singh was one of the partners and had signed and verified the plaint in the suit filed on behalf of the firm. The respondent was also carrying on business in spices, chillies etc. in Khari Baoli, Delhi. The appellant was a registered partnership of trademark bearing No. 227794 with effect from March 16, 1965 in class 30. A copy of the trade mark as registered as well as the registration certificate was filed in court. According to the plaint, however, "the main feature of the plaintiff's said trade mark is the device of chef carrying a bowl in his hands. There are other characteristic features and get up of the multi-coloured mark, which attract the attention of the mark and make it a distinctive mark. "The mark is for 'Meat Masala'."

(3.) It was claimed that the appellant was selling its goods in packets bearing the registered trade mark since January, 1965 in large quantities in India and was also exporting such packets of 'Meat Masala'. The 'Meat Masala' thus sold by the appellant "under the above said mark have acquired enviable reputation in trade and the public". It was further stated in the plaint that the purchasers of the appellant's goods include both literate and illiterate persons, women and children who recognise the goods by the distinctive device of the chef displayed on the carton and referred to in paragraph 3 of the plaint which has been extracted above. Extensive advertisement through newspapers, cinema slides, cinema reels, hand carts and hand bills was claimed to have been made. In February, 1965, it was alleged, the appellant came to know that the respondent had started selling 'Meat Masala' in cortons, specimen of which was filed, deceptively similar in its main features to the appellant's registered trade mark. It was further contended that "the device of the chef has been copied along (with) other distinctive parts and features, words and colour scheme of the trade-mark". (The word 'with' has been added as otherwise the sentence in paragraph 6 of the plaint would not be intelligible). The mark adopted by the respondent was claimed to be an infringement of the registered trade mark of the appellant and the selling of goods by the respondent in cartons bearing the mark complained of was claimed to be passing off of its goods for the goods of the appellant in spite of having full knowledge of the registered trade mark of the appellant. A notice dated February 29, 1968 was, accordingly, served by the appellant on the respondent to desist from the alleged infringement and act of passing off but to no avail.