ARAVIND LABORATORIES Vs. V. ANNAMALAI CHETTIAR

JUDGEMENT

(1.) THIS appeal s by the plaintiffs against the Judgment and decree, dated 17th day of November, 1976 in O.S. No. 36 of 1975 on the file of the Court of the learned District Judge, Chengalpattu, decreeing the suit in favour of the plaintiffs restraining the defendant or his agents by a permanent injunction from using the Trade Mark similar to the Trade Mark used by him as shown in Exhibit A -5 so as to be deceptively similar with the carton of the plaintiffs, as affixed in the plaint. The carton of the plaintiffs and Exhibit A -5 were directed to be annexed to the decree. The trial Court also observed that inasmuch as the plaintiffs themselves had not raised any objection for the use of the name "Eyesol" by the defendant (Exhibit A -10) the defendant will be free to use the same name by printing the same in a different manner from that of the plaintiffs. In the circumstances, the parties were directed to bear their own costs by the trial Court.

(2.) THE suit was for declaration of the exclusive right of the plaintiffs to the Trade Mark and for permanent injunction to restrain the defendant from passing off his goods and also for recovery of Rs. 10.000/ -as damages. The memorandum of cross -objections is by the defendant, M/s. Eyesol Laboratories, represented by its proprietor, Annamalai Chettiar against the said decree and judgment passed by the learned District Judge, Chengalpattu in the abovesaid suit, O.S. No. 36 of 1975.

(3.) THE case of the plaintiffs, M/s. Aravind Laboratories before the trial Court is that they are the manufacturers of Collyrium and other toilet preparations under the registered Trade Mark "Eyetex". Their firm, which is a registered one is engaged in the manufacture of Collyrium under the registered Trade Mark under special design, get up, and distinctive attractive marks. They are successors in trade from one, P.K. Vasudevan, who used the same name and Trade Mark "Eyetex" for the products manufactured and distributed by M/s. Aravind Laboratories carrying on business at Valasaravakkam, Arcot Road, Madras. The predecessors in trade had registered the mark "Eyetex" under Trade Mark NO. 124824, dated 11th September, 1946. It is also the case of the plaintiffs, that the plaintiff's carton on the front face shows the eyebrow, eyelashes and side hair of the head with small eyeshaped design in front of the eyeball, that even then, the defendant had made a false claim that his carton was registered under the Trade and Merchandise Marks Act, 1958, and the same is a deliberate falsehood. The plaintiffs after the purchase, registered the design on the front face of the carton and also the entire format of the carton under Trade Mark No. 271584, and it is dated. 24th April, 1971. It is also the case of the plaintiffs that they have acquired a special right to the exclusive use and advertisement of the carton and a long -standing ding and assured reputation at the hands of the public for over 30 years. The goodwill and the Trade Mark have put the plaintiff's goods in the market acquiring wide reputation and extensive demand. The defendant, who has been manufacturing the Collyrium has been passing it off as that of the plaintiffs by copying their design. Trade Mark, colouration, print and size, etc., of the carton with all distinctive, exclusive marks of the plaintiffs and he has chosen to give the name as "Eyesol" According to the plaintiffs, the Trade Mark of the plaintiffs is fully exploited to the point of similarity, in all respects except in few details. The important features are : - - The eye side hair, eyelashes, eyebrow, sea of floating eyes, on the front and reverse, and small eye letter design in front of the eye in green and the final special mark in the use of words, as special type of 'eye' (Eyetex). In the beginning, the cartons of the defendant ware red, later changed to black and now a clear and full imitation of the plaintiffs in all aspects. According to the plaintiffs the defendant has successfully attempted to deceive the public and there is an infringement of the exclusive Trade Mark as also direct attempt to disrupt the plaintiffs' foot -hold in the market and has caused loss. It is also the case of the plaintiffs that the defendant has not registered the Mark and is misrepresenting that his carton is genuine and registered under the Act and the special features of the registered Trade Mark of the plaintiffs have been infringed and the buyers are deceived by accepting the spurious one as real. According to the plaintiffs, the defendant had been called upon to produce the genuineness of his Trade Mark which he has failed to do and had evaded. Thus, according to the plaintiffs, the defendant has passed off his goods in the area of Tambaram and su(SIC)rbs and the city of Madras with the help and connivance of some of the dealers and has infringed the Trade Mark of the plaintiffs by deceptive and colour get -up in the carton, which fully resembles that of the plaintiffs. The defendant by such sale and deception his caused loss in the trade of the plaintiffs and the plaintiffs have incurred setback in the sale in money value nearly to the extent of Rs. 33,570. The plaintiffs have restricted chair claim of damages to Rs. 10,000. The plaintiffs issued a notice to the defendant addressed to No. 5, Second Street, Sundaram Colony, Tambaram and the defendant had evaded the receipt of the same. The plaintiffs also filed a criminal complaint against the defendant. The defendant issued a notice, dated 14th June, 1974, to the plaintiffs with all incorrect assertions, but the plaintiffs called upon him to give a declaration that he would not infringe and use the plaintiff's registered Trade Mark. But, the defendant has not dons so, but is continuing his act of deception and further infringement and material loss to the plaintiffs. Hence, the plaintiffs have instituted the suit for declaration of their exclusive right to the Trade Mark and for a permanent injunction to restrain the defendant from passing off his goods and also for liquidated damages to the extent of Rs. 10,000.