INDIAN DENTAL WORKS Vs. K DHANAKOTI NAIDU

JUDGEMENT

(1.) THE first plaintiff in this suit is the widow of one Duraiswami Mudaliar and the second plaintiff in her son. Duraiswami Mudalier is said to have started a business about the year 1934 of manufacturing tooth powder under the name Pyorrhea tooth Powder. The tooth powder was packed in paper envelopes and tin containers with a trade mark the principal features of which were the picture of a human face with open mouth showing diseased gums, superimposed with the numeral 1431. In the course of a few years the tooth powder became very popular, being sold all over South India and even in far off place like Malaya. In 1935 a declaration of ownership of the plaintiff's trade mark was filed before the Presidency Magistrate's court Calcutta. This declaration of ownership was registered under the numeral 1431 of 1935. Thereafter, the founder Duraiswami Mudaliar is said to have added the words "registered No. 1431" as part of his trade mark. In 1937 the founder altered the trade mark by adopting a red and green label wherein his won bust portrait appeared at the left hand bottom corner. Besides the expression "pyorrhea tooth powder" was written in a discipline manner in red ink in such a way that the bottom edge lay along the arc of a circle. A declaration of ownership of the amended trade mark was duly filed before the Registrar of Assurances at Calcutta on 3-8-1937. Ever since 1937 it is alleged that the founder and the plaintiffs have been regularly, and continuously using the above trade mark for their tooth powder and the public have come to associate the plaintiff's trade mark containing the numeral 1431 with the tooth powder manufactured by the plaintiffs.

(2.) THE founder applied for registration of the above trade mark in May 1948, and the trade mark was registered without the expression "calcutta registered No. 1431". In December 1951 Duraiswami Mudaliar, the founder of the plaintiff's business, again applied for registration of the numeral 1431 as part of his trade mark. But, this was not granted. On 19-10-1953 the first plaintiff's husband duraiswami Mudaliar died. There after the business is being continued by the plaintiffs.

(3.) ON 6-11-1953 the first defendant obtained registration of a trade mark for tooth powder, with the numeral 1431. He and the second defendant are brothers. It is said that the first defendant applied for registration of 1431 in order to pass off his goods as the goods of the plaintiffs. Soon after, the plaintiffs receiver numerous complaints from their dealers about the defendant's goods being sold to the public as plaintiff's tooth powder. Thereupon plaintiff applied for rectification of the Trade Mark Register by expunging the registration of the trade mark obtained by the first defendant. This Application was made on 4-4-1955 and after notice to the first defendant it was allowed by the Registrar of Trade Marks on 4-7-1957. Against that order the first defendant preferred C. M. P. No. 94 of 1959. Against the dismissal of that C. M. P. , L. P. A. No. 153 of 1959 is now pending.