HAMSA Vs. SYED AGENCIES

JUDGEMENT

(1.) The principal question in this case is whether it is permissible for the defendant to use the name of 'Bismilla' as the trade name in reference to his goods although the plaintiff-firm in reference to similar goods is already using the trade mark 'Bismi'.

(2.) Parties to this appeal are a registered firm and a businessman who does business mainly in ball point pens and fountain pens and allied articles. The court below has passed a decree prohibiting the defendant from marketing any goods under the mark Bismilla or any other mark similar or deceptively similar to the plaintiffs trade mark Bismi, It also declared that the mark Bismilla used by the defendant is an offending mark deceptively similar to the plaintiffs registered trade mark Bismi. Further, the court declared that the plaintiff is entitled to realise damages from the defendant on account of his selling products manufactured in the name Bismilla. The court directed assessment of the quantum of damages to be made in the final decree proceedings. Defendant challenges this decree in this appeal.

(3.) Plaintiff is the proprietor and owner of a registered trade mark Bismi. The trade mark was registered on 6th July, 1965. The number of the trade mark is 229921. Plaintiff got the trade mark transferred in his name under a certificate issued on 26-7-1975 by the Assistant Registrar of Trade Marks, Bombay. Plaintiff was/is marketing his goods, fountain pens, ball point pens and allied articles in the registered trade mark Bismi. Plaintiff claims that by virtue of the said registration as well as by long established user and wide publicity, plaintiff has acquired exclusive right to the use of the trade mark Bismi particularly in relation to the sale of fountain pens, ball point pens, pencils, writing inks and other similar materials.