MADAN LAL ARORA Vs. SONI UDYOG

JUDGEMENT

(1.) In an action for passing off and damages, the plaintiff, sole proprietor of M/s. Calcutta Wire Netting Industries, has filed this application under Order 39, Rules 1 & 2 read with Section 151 of the Code of Civil Procedure seeking temporary injunction restraining the defendants, the servants, agents, representatives, dealers and all others acting for and on behalf of the defendants from manufacturing, selling, offering for sale, advertising or displaying directly or indirectly, dealing in Wire and Wire Nettings and other allied and cognate goods under the trade mark "LION BRAND" label with device of lion or any other trade mark identical with or deceptively similar to the plaintiff's trade mark, "TIGER BRAND" label with device of Tiger.

(2.) The plaintiff's case is that it is engaged in the business of manufacturing and marketing Wire and Wire Nettings, since the year 1964; it adopted the trade mark "TIGER BRAND" label with devise of Tiger for its product and has been continuously using the same since then; it has established extensive business in major parts of the country; has widely advertised the said trade mark through different media, and has spent a substantial sum of money on wide publicity of the said trade mark and the said trade mark enjoys solid and enduring reputation of the market. In the documents filed by the plaintiff, he has given the sale figures of its concern for the years from 1989 to 1995 which run into crores of rupees. It is claimed that on account of long, continuous, extensive and exclusive user thereafter, the public at large associates the said trade mark to the aforementioned goods of the plaintiff. It is claimed that in addition to the common law rights, in order to acquire statutory rights for the said trade mark, the plaintiff has filed an application for the registration of the said trade mark in respect of Wire and Wire Nettings in class 6 of the Fourth Schedule of the Trade & Merchandise Marks Act, 1958 (for short, the Act).

(3.) The plaintiff alleges that defendant No. 1, who also is manufacturing Wire and Wire Nettings has, in September, 1995, adopted the trade mark "LION BRAND" label with device of Lion in respect of the said product with a view to take advantage of the reputation of the plaintiff's product and to cause deception and confusion in the minds of the public and to pass off its spurious goods as that of the plaintiff, which act amounts to passing off goods by the defendants as of the plaintiff, and it cannot be permitted. Defendant No. 2 is the distributor for defendant No. 1's goods.