KUNDAN DASS RAI Vs. RAJ CHEMICAL

JUDGEMENT

(1.) THAT plaintiff claims a decree for perpetual injunction restraining the defendants from passing off their wax silicon polish by using the mark EXCAL on the tins like annexure 'X' which are confusingly similar to the plaintiff's trade mark EXCEL on tins like annexure 'B'. This case of the plaintiff as laid down in the plaint is as follows:

(2.) THE plaintiff is carrying on business in the manufacture and sale of wax silicon polish used for polishing cars, floor and furniture since 1971 and started using the mark EXCEL tin respect of wax silicon polish on 4.11.1977 and has sold the polish for the value of Rs. 17 Lakhs since the adoption of the trade mark EXCEL. THE present annual sales value is claimed to be Rs. 5 lakhs. It is alleged that the plaintiff has been advertising the trade mark EXCEL in respect of the wax silicon polish in various media of advertisement i.e. newspapers, gift articles, boardings, stickers etc. and has spent approximately Rs. 50,000/-. THE plaintiff's polish on account of its superiority has achieved a big name in the trade and among the public and almost all the leading paints merchants in Delhi and other parts of the country are stocking and selling in the plaintiff's wax polish. THE plaintiff is selling tins which have red back-ground and writings on it are in black and white colours. THEre is a white panel on the circumference of the tin on which directions are given. On account of the wide sale and advertisement of EXCEL brand wax silicon polish it has become popular with the customers and the trade who associate the mark EXCEL with the wax silicon polish manufactured and sold by the plaintiff. THE purchasers and the intending purchasers of the silicon wax polish recgonise the plaintiff's wax polish by its trade name EXCLE and by the colour scheme, get up and design of the tin. It is further stated that about 3 weeks back it came to the notice of the plaintiff that the defendant have brought into the market was silicon polish under the trade mark EXCAL in thins of exactly the same size, colour scheme, get up and design. THE plaintiff trading style RAJ CHEMICALS. THE defendants have priced their wax polish at exactly the same price as that of the plaintiff. It is claimed that the defendants' trade mark EXCAL is an infringement of the plaintiff's trade mark EXCEL and the defendants are passing off their EXCAL was silicon polish as EXCEL was silicon polish of the plaintiff.