B K ENGINEERING COMPANY Vs. UBHI ENTERPRISES

JUDGEMENT

(1.) THIS is the plaintiff's suit complaining passing off of its trade mark and claiming relief in the nature of permanent injunction restraining passing off, rendition of account etc.

(2.) THE plaintiff claims to be a registered partnership firm of which Mr. Balbir Singh is one of the registered partners who has filed this suit and has verified the pleadings on behalf of the plaintiff. Plaintiff claims that it has been carrying on business of manufacture and sale of cycle bells since 1971 and adopted BK as its trade/house mark. Plaintiff has pleaded that trade mark BK has been used per se as well as in a circular logo device and has been used in conjunction with other trade marks of the plaintiff, namely, Crown, Venus and Jeeson in relation to cycle bells manufactured and sold by the plaintiff. Plaintiff has further pleaded that its cartons relating to various varieties of cycle bells permanently show BK in a circular device which used as a trade mark, apart from the carton relating to BK and that plaintiff is known, recognised and identified as BK cycle bell manufacturer and goods of its manufacture are also known as BK product. Plaintiff then claims that the trade mark BK is embossed on the lever of the cycle bell as well as on the dome shape cover and that it has sold cycle bells all bearing trade mark BK to the tune of Rs. 80,57,650.92 and has also spent a considerable amount on the advertisement and the sales promotion of its products. THE grievance of the plaintiff is that defendant No. 1 has also started manufacturing and sale of cycle bells with the mark BK-81 and that this mark has been deliberately, malafide and solely adopted with a view to trade upon the reputation, status and goodwill of the plaintiff. Plaintiff says that the essential key and leading portion of the defendant's impugned mark is BK-81 as compared to the plaintiff's trade/house mark BK and that the impugned mark BK-81 is identical and deceptively similar to the plaintiff's mark BK. Plaintiff further says that its mark has been copied by the defendant and that the expression 81 has got no trade mark value and that the defendant's mark is bound to be considered and referred to and called as BK. Defendant No. 1 is stated to be a dealer of cycle bells in Delhi and those manufactured and sold by defendant No. 1. Plaintiff then says that defendants have full knowledge about the user and reputation of the trade mark/name BK on the part of the plaintiff and have deliberately adopted the impugned name/mark and defendants products bearing the impugned mark are bound to be considered as one of the plaintiff's series products so marked products all bearing BK as an essential feature. Plaintiff, therefore, contends that the confusion and deception is inevitable and the goods of the defendants are bound to be associated or connected with the plaintiff's goods or its business. Defendants No. 2 did not appear. Defendant No. 1filed it written statement. If generally denied the allegations of the plaintiff and stated that the plaintiff is wrongfully asserting its right to the letters BK when it has no registration for BK as trade mark in respect of cycle bells or as a house mark. It is admitted that defendant No. 1 is manufacturing and selling cycle bells under the trade mark BK-81, "BK being the initials of their mother, Balbir Kaur, since 1981, who died in 1981, the first sale having been made in November, 1981". THE jurisdiction of this Court to try the present suit is also denied on the ground that no part of cause of action arose in Delhi.

(3.) MR. N. K. Anand, learned counsel for the plaintiff, countered all these arguments and submitted that the evidence was so overwhelming in his favour that he had to succeed. He admitted that BK was not the registered trade mark but said that key portion of the name of the plaintiff was BK which had been adopted by the defendant No. 1 as its trade mark. MR. Anand said that the present was passing off action. He said the parental mark or general mark or the primary mark of the product of the plaintiff was BK which was mentioned on all the cartons in which the bells of the plaintiff were packed and that the variety like Crown. venus etc. of the belt were the supplementary marks, subsidiary marks or secondary marks. He said the mark BK was associated with the plaintiff in which it was carrying on its business and all the varieties of the cycle bells manufactured by the plaintiff were identified as of BK quality. MR. Anand also said that the cycle bells were purchased even by illiterate or semi literate persons and were sold in villages at far off places and merely writing of the name of defendant No. 1 on the bell in English was of no avail. The bell manufactured by defendant No. 1 was not being put in any separate carton and that evidence had come on record that all the bells of various manufacturers were kept side by side in a shelf by the shopkeeper and the argument, therefore, that six number of bells of defendant No. 1 were packed in a separate carton of different colour and get up had to be rejected and this could not save deception being caused on an unwary customer buying a cycle bell of the manufacture of the plaintiff. MR. Anand referred to the para-50 of the Narayanan's book on Trade Marks and Passing off on the question of house mark and product mark which is as under: