DOLAT INDUSTRIES Vs. KRISHNA OIL INDUSTRIES

JUDGEMENT

(1.) This Appeal is filed by the original plaintiff against the order passed below Exh.5 in Regular Civil Suit No. 1 of 2000 on 31st August, 2000 by Jt. District Judge, Jamnagar. The present respondents are original defendants.

(2.) Present appellant filed Regular Civil Suit No. 1 of 2000 in the Court of District Judge at Jamnagar stating that the plaintiff is a partnership firm, engaged in the business of manufacturing and selling edible oils including groundnut oil since 1984 in the name and style of "Dolat Industries". The plaintiff is registered with Sales Tax Department, etc. The plaintiff has adopted his brand name as "EKKA" for selling groundnut oil. According to plaintiff, this is the mark which is distinctive and unique trademark which displays the picture of "Four Aces". According to the case of the plaintiff having the device of Four Aces with unique lay out, get up and colour scheme started using the same by affixing on the tins of such groundnut oil since 1986. The same mark was used to be embossed on metal caps of such oil tins. The same mark also displayed in 15 Kgs. tins as well as 5 litre plastic can and 1 litre and half litre plastic bottles. It is the case of the plaintiff that the groundnut oil which the plaintiff is selling under the trademark "EKKA" and under the device of "Four Aces" is exclusively associated and connected with the goods and goodwill of the plaintiff to the extent that when the said trademark i.e. the name of EKKA or the device of Four Aces or device of Ace or Aces is called for or described of in regard to any type of edible oils including the groundnut oil, the same is understood by the customers and traders as the products of the plaintiff only and of none else. Therefore, this mark has become the property of the plaintiff of immense value and goodwill. The plaintiff further stated that the plaintiff has acquired proprietary right with regard to the mark "EKKA" under the common Law rights. The plaintiff has also submitted that the statement of accounts produced shows prosperity and progress in their business of edible oils and groundnut oil under the brand style of "EKKA". The plaintiff has also obtained AGMARK label from concerned authority.

(3.) It is the case of the plaintiff that they came to know from the market somewhere in the fourth week of December, 1999 that the respondent No.2 has started selling the groundnut oil affixed with the trade mark label containing the words "TIN EKKA" and the device of "Three Aces" and the device of groundnuts. It is the case of the plaintiff that the groundnut oil sold by defendant No.2 under the above said trade mark which is identical and deceptively similar to the trade mark label of plaintiff, causes confusion in the minds of the customers. It is the case of the plaintiff that the trade mark of the defendants respondents "TIN EKKA" is also identical and deceptively similar in style, manner, lay out, get up, colour scheme and placement of various features so as to come closer to the brand style of its trade mark label and the plaintiff's trade mark "EKKA" with the device of "Four Aces". This, according to the plaintiff, results in grave passing off their goods as the goods of the plaintiff with the intention to gain illegally upon the vast popularity of the plaintiff and trade mark style used by them and to damage the high goodwill and reputation of the plaintiff. It is the case of the plaintiff that it was within the knowledge of the defendants that the trade mark label "EKKA" has become popular amongst major cities of the Gujarat and, therefore, the defendants have deliberately and intentionally imitated the trade mark and label of EKKA and the device of Four Aces" of the plaintiff and have started very recently selling the groundnut oil under the above deceptively similar device. In this regard, there was some exchange of notices between the parties. The suit came to be filed for the permanent injunction restraining the defendants from using the trade mark label "TIN EKKA" with the device, which is similar to the plaintiff and thereby restraining them from passing off their edible oils and groundnut oil as the goods of the plaintiff.