AMAR SOAP FACTORY Vs. PUBLIC GRAM UDYOG SAMITI

JUDGEMENT

(1.) In a suit for perpetual injnction restraining infringement of copyright, passing off, rendition of accounts, damages etc., the case set up by the plamtiff Amar Soap Factory, in brief is that it. is a partnership firm consisting of four partners duly registered under the provisions of the Indian Partnership Act; that Shri Surjit Singh, one of the partners, is well acquainted with the facts of the case and autherised to file, sign and verify the pleadings for and on behalf of the firm; that the plaintiff is doing the business of manufacturing and selling of all kinds of scaps since the year 1960, continuously and extensively; that since then the plaintiff has been using a. distinctive trade mark recognised by the device of crosssworas and called by the name of Talwar Marka' for their products and have acquired a valuable goodwill; that the plaintiff firm is registered proprietor of artistic labe) entitled Talwar Marka' which is duly registered under No. A-7562/72 under the provisions of the Copyright Act; that the salient features of the plaintifi artistic label are that two side panels are having device of two swords placed in cross position; one side panel contained the bust portrait of two partners of the plaintiff firm that the overall colour scheme, get up, lay out, arrangement of words of plaintiff soap wrapper in unique and distinctive and its registration is valid, subsisting and effective throughout India; that the plaintiff has acquired exclusive rights for the use of trade mark 'Talwar Marka' and none is entitled to use and trade upon the plaintiffs trade mark; that the plaintiffs sales of soap under the impugned mark runs in lakhs of rupees; that the defendants are doing the business of manufacturing of E washing soap under the name and style of M/s. Public Gram Udyog Samiti and had adopted identical trade mark Tslwar Marka" sometime in the year 1977: that the plaintiff immediately served a notice dated 1-8-1977 through their attorney calling upon the defendants to desist the use of trade mark Talwar Marka' and consequently the defendants ceased to use the said marka; that the defendants have again started the-use of the impugned trade mark in the year 1979 and again a notice dt. 2-3-1979 calling upon the defendants to desist the use of the said trade mark was served; that the defendants inspite of the service of the notice have not cared to stop the manufacture and sale of soap under the impugned trade mark: that the plaintiff has already filed an application under No. 314116 in Class 3 for the registration of the trade mark Talwar Marka" alon gwith the device of cross-swords under the provisions of Trade & Merchandise Marks Act: that the impugned application was advertised in the Trade Marks Journal No. 716 dated 1-4-1979, to which the defendant has filed an opposition that the similarity between the marks and wrappers of the plaintiff any newspaper being published or having circulation in Delhi; that even the alleged infringement of copyright does not confer any jurisdiction; that the suit of the plaintiff is barred by principles of acquiescence inasmuch as the plaintiff and defendant are trading in the nearby localities to the knowledge of each other; that the claim of the plaintiff over the proprietorship of the trade mark 'Talwar Marka' aic subjudice before the Competent Authority; that the defendants are using the said trade mark 'Talwar Marka' with the bust photos of two persons bonafidely, honestly and concurrently. On merits, they denied the averments that the trade mark of the plaintiff has become distinctive or has acquired valuable goodwill inasmuch as their trade mark is not at all known in the market and the same is under serious dispute between the parties; that the' trade mark SWORD and device of cross swords is already registered in the name of The Ganesh Flour Mills Co. Ltd. under No. 113682 in respect of soaps, duly advertised in Trade Marks Journal No. 133 and as such the plaintiff cannot claim to be the proprietor of the impugned trade mark label; that the plaintiff's label is neither original in idea nor in its form of expression and as such they cannot claim to be the prOprietor of the alleged artistic label; that the product of the plaintiff has not acquired any goodwill or reputation as alleged that the defendants are using their own trade mark Talwar Marker' which has acquired great reputation in the market and has become associated with the goods of the defendant since 1973; that the defendants have also. applied for the registration of its trade mark Talwar Marka' with the bust of two persons under the provisions of Trade & Merchandise Marks Act vice their application No. 329561 in class 3 which application has been advertised in the Trade Marks Journal; that the defendant's trade mark is not identical or similar to that of the plaintiff: that no cause of action has arisen against the defendants and as such their suit merits dismissal.

(2.) On the pleadings of the panics, the following issues were framec - ISSUES :

(3.) On 1-8-84 learned counsel for the defendants stated at the bar that all the documents filed by the plaintiff be read as evidence aid the defendants be presumed to be in continuous user of the trade mark in dispute. On this understanding, learned counsel for the plaintiff did not produce any evideace. The defendant examined Sh. Surinder Pal. the Secretary of the defendant Samiti, and closed the evidence.