ELOFOC INDUSTRIES INDIA Vs. STEEL BIRD INDUSTRIES

JUDGEMENT

(1.) Under the provisions of Section 111 of the Trade and Merchandise Marks Act, 1958 the Court has the power and the duty.to Stay the plaintiff's suit where the Validity of the registration of the trade mark is questioned by the defendants. Relevant Section 111 reads as under : Section III (1) Where in any suit for the infringement of a trade mark,

(2.) The plaintiff has not cared to file the reply to this application and has argued the matter on the basis of the pleadings and the documents already on record.

(3.) According to the learned counsel for the plaintiff, the plaintiff firm is engaged in the business of manufacture and sale of oil, air and fuel filters for automobiles and are the registered proprietors of as many as 5 trade marks 'Elofic' in respect of the motor parts, oil and fuel filters being elements in the lubrication system of the internal combustion engines. .It is also alleged that the plaintiffs are the registered proprietors of 'cartons having black background with red spots and white and black writing on them, under the Copyright Act. They have been using the cartons continuously for the last over 24 years for the sale of their filters under the trade mark 'Elofic' and on account of the long, continuous and extensive use the public has come to denote and connate the goods as that of. the plaintiff and of no one else. It is also. alleged that the defendants applied for registration of. 'Steel .Bird' under No. 2S2:375,in. class 12 in respect of filters for the use in automobile enables and on the opposition of the. plaintiff the defendant's trademark was disallowed by the order of the Registrar of trade marks dated 16-6-1982. On the. basis of these averments the plaintiff filed the suit praving for the issuance of a perpetual injunction restraining the defendants, their servants, agents, stockists and all other persons on their behalf from using the trade mark 'Steel Bird in relation lo oil air and fuel filters and other motor parts which is an infrrings ment of the plaintiff's registered trade mark referred to in para No. 3 of the plaint. A restraint order from using the offending cartons in which the goods of the defendants can-be passed off was also sought for.