SAMPERIT AKTIENGE SELLSCHAFT Vs. SYNTHETIC MOULDERS

JUDGEMENT

(1.) [Plaintiff claiming to be owner of Regd. trade Mark of 'MATADOR' for combs etc. sued Deft. for restraining them from manufacture and sale of combs bearing mark identical or similar to bis. He also filed an application for interim injunction. Before filing suit plaintiff had served Defts. with a 'cease & desist' notice on 28.2.78. Deft. 1 replied that he was using mark since 1964 and claimed to have applied for registration on the basis of concurrent use. In the W/s reply of Deft. 1 was that he innocently began use in 1966 and applied for registration on 27.12.66 and Registry informed him on 5.4.67 that Mark was registered in favour of plaintiff and he applied for Rectification on 26.7.67 and plaintiff is not entitled to relief on the ground of laches and the Mark had become invalid on the ground of non-user. That import of combs was banned and the suit should be stayed u/s 111 of the Act as application of Deft 1 is pending for registration since 5.7.77 and that he is entitled to concurrent registration u/s 12(3). Objection was also taken that person who had signed plaint was not duly authorised. Court found the Power of Attorney in order u/s 85, Evidence Act and in accordance with law in Jugraj v. Jaswant AIR. 1971. S.C. 761.] Para 10 onwards, judgment is:

(2.) It is well-settled that action for infringement is a statutory remedy conferred on the registered proprietor of a registered trademark for the vindication of his "exclusive right to the use of the trade mark in relation to those goods", while an action for passing off is a common law remedy. In an action for infringement where defendent's trade mark is indentical with the plaintiff's mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using not the exact mark on the Register, but something similar to it, the test for infringe- ment is the same as in an action passing off, i.e., a passing off by a person of his own goods as those of another.

(3.) In an action for infringement a plaintiff can succeed not only when he proves that the whole of his trade mark has been copied but he can also succeed if he shows that the defendant's mark is similar to the plaintiff's mark as it would be remembered by persons possessed of average memory with its usual imperfections of that its essential particulars or distinguishing or essential feature has been copied (See Division Bench judgements of this Court in Nanak Chand and others v.Kohinoor Chemical Co. Ltd. I.IR. (1970) Delhi (II) 344 and Jagan Nath v. Bhartiya Dhoop Karyalaya. I.L.R. (1975) Delhi (II) 225.