BHATIA PLASTICS Vs. PEACOCK INDUSTRIES LIMITED

JUDGEMENT

(1.) The plaintiff has filed a suit for perpetual injunction, infringement of trade mark, passing off and rendition of account. Along with the suit an application was filed (IA No. 2193) under Order 39 Rules l & 2 read with Section 151 Civil Procedure Code for restraining the defendants from manufacturing, selling, offering for sale, dealing in plastic goods under the trade marks 'PEACOCK' along its device. Further prayer was sought by the plaintiff to restrain the defendants from using the marks PEACOCK in respect of their corporate name of any other trade marks or the word which is deceptively similar to the plaintiff's trade mark "MAYUR'. The case of the plaintiff is that plaintiff has been carrying on the business of manufacturing and selling wide range of plastic goods since the year 1968 and it is registered properietor of the following trade marks :- (a) Trade mark MAYUR registered under No. 369817 in class 21 in respect of buckets, wash basins and water jugs, small household containers, brushes, hair combs, mugs, picnic boxes and trays (not of precious metal or coated therein) lunch boxes, table plates, pots and dustbins; all being goods made of plastic and included in class 21 claiming user since July, 1977. (b) Trade Mark MAYUR registered under No. 403633 in class 21 as of 31-3-83 in respect of flasks.

(2.) According to the plaintiff, it has sold goods worth crores of rupees and the present sale for the year is Rs. 60 lakhs. Plaintiff, according to the averments made in the plaint, has been spending a huge amount on its advertisement by various modren media i.e. wall paintings, magazines, video advertisement, hoardings etc. According to the plaintiff, on account of superiority of the plaintiff's goods, said goods have become popular with the trade and public and arc demanded and asked for as MAYUR AS WELL AS 'MAYURI, MAUR and PEACOCK' being translation of trade mark MAYUR.

(3.) According to the plaintiff, it has been using the said trade mark in a special script since its adoption of word MAYUR. The case of the plaintiff is that intending purchaser of the aforesaid goods, which include illiterate household wives, women, villagers and servants who recognise the plaintiffs goods by the trade mark MAYUR or its equivalent words in English and Punjabi by calling it MAYURI, MAUR and PEACOCK. Apart from these submissions, learned counsel for the plaintiff, Mr. Aggarwal, has also argued that by virtue of the registration which is still subsisting in the Register of Trade Marks, the aforesaid trade mark has become old trade mark and conclusively valid under the provisions of Section 32 of the Trade and Merchandise Marks Act, 1958. The learned counsel for the plaintiff has submitted that under Section 28 of the Trade and Merchandise Marks Act, the plaintiff has got the statutory and exclusively rights conferred by the said registrations to use the said trade mark. The averment of the plaintiff is that in the third weeks of November, 1992 when it came to the notice of the plaintiff that the defendants had incorporated the defendant- company under the name of M/s. Peacock Industries Ltd. and were manufacturing and selling the said plastic goods under the trade mark PEACOCK, the plaintiff filed the present suit. Mr. Aggarwal further submitted that plaintiff's goods and that of the defendants are sold on the same counter and under the same roof and both goods are of plastic made and defendants are also using the trade mark PEACOCK -in respect of plastic goods which are cognate goods and defendants are passing off their goods as that of the plaintiff. The sole intention of the plaintiff is to deceive and/or to mislead the trade and the members of the public and further cause them to believe that the said goods bearing the trade mark PEACOCK are of the plaintiff's meanufacture.