A. SHANMUGHA MUDALIAR Vs. A. ABDUL KAREEM

JUDGEMENT

(1.) THE Defendant is the appellant. The plaintiff, a trader and manufacturer of beedies, whose mark is admittedly known as "No. 4 Jadi Beedi" filed this action against the defendant contending that the defendant several years after the plaintiff started manufacturing and marketing of such beedies has designed a mark which is deceptively similar to and resembling in every material particular to his mark of "No. 4 Jadi Beedi". The defendant has adopted a mark known as No. 4 AG Beedies." but the plaintiff's case is that in order to cut at his trade the defendant has designed the mark and was using it on the labels attached to the beedies as also on the wrappers and even a casual comparison of the beedi packets and bundles would disclose a close resemblance as between the two marks and designs, that the Plaintiff is entitled to an automatic decree of permanent injunction restraining the defendant from passing off or attempting to pass off the beedies now sold by him under "No. 4 AG" mark with the wrappers, designs and labels containing such mark. The plaintiff also would allege that the defendant is under selling his beedies and is thus cutting into the volume of the plaintiff's business as well.

(2.) THE defendant, in his written statement, denied any such resemblance and much less deceptive similarity between the two marks. He traced the history of his business and as to how he designed for himself the literature over the wrappers and invented on his own the mark "No. 4 AG" and his contention is that "AG' consists of a mixture of the first letter in "Anna Beedies" and the first letter in "Gem Beedies" which he started and that therefore he had a right to use this invented mark of his on the products manufactured by him and the plaintiff is not entitled to a permanent injunction as prayed for. It may be noted that the plaintiff came to Court for the grant of permanent injunction on the foot that the Defendant was passing off his beedies as if they were of the manufacture of the plaintiff by adopting a mark which is so near and so much deceptively similar to his mark of "No. 4" beedies. It appears that the defendant raised an objection in the course of the trial that as the mark was not a registered mark under the provisions of the Trade and Merchandies Marks Act, 1958, the plaintiff was not entitled to any relief. The plaintiff, during the pendency of the suit, got his mark "No. 4 beedies" registered under the provisions of the above Act and we are informed that the plaint was amended after the plaintiff secured such a registration of his mark. But it is curious that an additional issue was not raised in the pleadings as to the nature of entitlement of the plaintiff after he secured such a statutory right under the Trade and Merchandise Marks Act, 1958. On the pleadings as they stood but in the above circumstances the following issues were raised.

(3.) ONE other contention raised by the defendant was that he was using his mark for a considerable length of time and the plaintiff acquiesced for such user. His case was that he started originally beedies with the mark of "Anna Beedies" and later on he traded in "Gem Beedies" and he made a harmonious combination of these two and adopted ultimately "AG Beedies" and the period during which he was trading in the above marks and also in the mark complained against when cumulatively taken into consideration would lead to the inference that the plaintiff acquiesced in the trade of the defendant with the alleged infringing marks. We are unable to accept this contention. We are here concerned with the mark "No. 4 AG". The learned Judge rightly found on the evidence that the defendant began to use this mark only a few months before the plaintiff came to Court -for the grant of a permanent injunction on the ground that the offending articles were infringing his mark and cutting into his trade. No record has been shown to us by Mr. Balasubramaniam appearing for the appellant, which would in any way disturb the finding arrived at by the learned trial Judge. We agree with the learned trial Judge that there was no delay in the matter of the institution of this suit for passing off and the plaintiff came to Court with as much expedition as possible to vindicate his rights.