MOIDEEN Vs. VASU

JUDGEMENT

(1.) These two appeals arise from the judgment and decree of the learned District Judge, Kozhikode, in O. S. No. 2 of 1977. A. S. No. 71 of 1978 is the plaintiff's appeal against the decree rejecting his prayer for injunction to restrain the defendants from infringing the plaintiff's trade mark. A. S. No.73 of 1978 is the 1st defendant's appeal against the decree granting the plaintiff's prayer for injunction restraining the 1st defendant from passing off his goods as the plaintiff's goods. The 2nd defendant remained ex parte in the court below and he has not entered appearance here. The contesting parties in these two appeals will be generally referred to as plaintiff and defendant.

(2.) The plaintiff is the proprietor of Panama Soap Works, Kakkodi. The defendant is the proprietor of Puthiyara Soap Works, Puthiyara, Calicut. The plaintiff manufactures washing soaps under the registered trade mark "Panama". The registration of the trade mark was obtained by the plaintiff with effect from 15 11 1974 under the trade and Merchandise Marks Act, 1958 (Act 43 of 1958) (the Act). It is alleged by the plaintiff that he has been using the trade name 'Panama' with its distinctive design, get - up, style, and colour scheme ever since 1970 when he first started production of soaps. The plaintiff's business was carried on during 1971-1972 under the name "Panama Chemicals, Calicut, S. India.". It was subsequently renamed as 'Panama Soap Works, Kakkodi.' The plaintiff's trade mark is contained in Ext. A53 and it is printed on his wrapper, Ext. A6. The 1st defendant started manufacturing soaps from 18 6 1974 under the mark 'Prameela' which is printed in his wrapper, Ext. A41. The second defendant has adopted Ext. A42 wrapper which is almost identical to Ext. A41. The defendants' marks are not registered. When the plaintiff came to know of the 1st defendant's manufacture of Prameela soaps, Ext. A39 notice dated 9 7 1977 was sent to him on behalf of the plaintiff pointing out the striking resemblance of his mark 'Prameela' to the plaintiff's registered trade mark 'Panama'. The defendant was told that his mark was an infringement of the plaintiff's registered trade mark, and he was accordingly called upon to stop using the mark 'Prameela' in the present form and style. He was also told that he was passing off his soaps as the plaintiff's soaps and he was called upon to refrain from such acts. Ext. A40 dated 4th August 1977 was the reply sent to the plaintiff on behalf of the defendant. The defendant's advocate explicitly stated in Ext. A40 that it was not the defendant who imitated the plaintiff's mark and get - up, but it was the plaintiff who imitated the defendant's mark and get - up. This is what he stated:

(3.) As the defendant refused to comply with the plaintiff's demand the suit was instituted on 7-10-1977. The plaintiff's user of the 'Panama' trademark with its distinctive get - up, style and colour scheme as from 1970 and the registration of the said mark with effect from 15-11-1974 were specifically pleaded in the plaint. It was alleged that the defendant infringed the plaintiff's mark as well as passed off his goods as the plaintiff's goods. The plaintiff sought an injunction against the defendant on both the grounds.