MAYOR BROTHERS Vs. VIJAY INDUSTRIES

JUDGEMENT

(1.) IN the present suit which is for permanent injunction restraining the defendants from infringing the trade mark of the plaintiff and for rendition of accounts, I am to decide by the present order two applications I. A. 6886/84 is by the plaintiff and is under Order 39 Rules 1 and 2 and section 151 of the Code of Civil Procedure whereby the plaintiff seeks interim reliefs during the pendency of the suit I. A. 515/85 is by the defendant and is under section 111 of the Trade and Merchandise Marks Act, 1958 ("the Act" for short) wherein the defendant seeks stay of the present proceedings.

(2.) THE plaintiff is a registered partnership. It is manufacturing and selling Chaffcutter knives under the trade mark "Manpower with a device of side face/head of a man". This is so since 1962. It is a claimed that this trade mark is a distinctive one and the trade mark is popularly known in the trade and public as "Manpower". It is a registered trade mark under No. 211444 dated 22nd September, 1962 and has been renewed from time to time and its registration is subsisting and is valid. It is then alleged that this trade mark of the plaintiff in relation Chaffcutter knife has acquired a valuable goodwill and reputation in the trade by virtue of long established user since the year 1962 and that use of any identical or deceptively similar trade mark is liable to cause confusion and deception and would give an impression" that the Chaffcutter knives were either those of the plaintiff's manufacture or were in any way connected with the plaintiff or its business amounting to passing off". THE plaintiff then gave figures of its sales from the year 1962-63 to date. It is alleged that the defendant knowing fully well the rights and interest of the plaintiff in this trade mark and with mala-fide and illegal designs started using a mark deceptively similar to the trade mark of the plaintiff on the Chaff cutter knife of the defendant which mark also contained a device of side face/head of a man and this was obviously done by the defendants to earn illegal profits. THEn there are other allegations in the plaintiff that the impugned mark of the defendant is a colourable imitation of the plaintiff's trade mark and is liable to cause confusion in the minds of the purchasing public, causing loss to the plaintiff both financially and in reputation, which loss could not be estimated in terms of money. On 10th September, 1984 the plaintiff sent a notice to the defendant drawing attention to the fact that the defendant was manufacturing Chaff-cutter knife "Vijay Power" with side face/head of a man which resembled the well known trade mark of the plaintiff in respect of Chaff-cutter knife consisting of "manpower with device of side face/head of a man". It was stated that the trade mark adopted by the defendant was deceptively similar to the trade mark of the plaintiff and the defendant was asked to desist from using the impugned trade mark so as to avoid confusion in the market and trade. THE defendant sent its reply by letter dated 14th October, 1984. It denied knowledge of the registered trade mark of the plaintiff but stated that it had honestly and bona-fide adopted the trade mark "Vijay Power" since 1st April, 1964 and that the word "Vijay Power" was the key portion and memorable part of their trading style. It was stated that the defendant has been using the trade mark "Vijay Power" was quite distinct and different from the trade mark of the plaintiff. Attention of the plaintiff was also drawn to the fact that application of he defendant for registration of its trade mark was pending before the Registrar of Trade Marks. THE plaintiff complained that though in the reply the defendant stated of its having adopted trade mark "Vijay Power" since 1964, no reply was given to the real point which was regarding user of the device of side face/head of a man which resembled the well known trade mark of the plaintiff. THE plaintiff then contended that the Chaff-cutter knives are purchased by villagers particularly the agriculturists who are illiterate and are bound to be confused on account of deceptively similarities between the two trade marks. Lastly is was contended that public interest also demanded that the products which were colourable limitation of the genuine products were not to be manufactured and sold. THE plaintiff therefore, prayed for permanent injunction restraining the defendant from manufacturing, selling etc. or dealing in Chaff-cutter knives as are colourable limitation of the plaintiff' Chaff-cutter knives by giving an impression that the defendants' Chaff-cutter knives with the impugned trade mark "device of side face/head of a man" are either coming from the plaintiff's source of manufacture or in any manner manufactured sold offered for sale having a connection with the plaintiff or its business. THEre are other prayers but for the time being I am not concerned with any other prayer. With the suit the plaintiff filed the present application wherein it prayed that pending the disposal of the suit the defendants be restrained from manufacturing, selling or offering for sale or dealing in Chaff-cutter knives under the impugned trade mark "Vijay Power" with device of side face/head of a man" or by using any other deceptively similar mark.