M/S. EDISON PAINTS BY ITS PARTNER N.S. JEYAMANOHARAN Vs. M/S. AGSAR MATCH INDUSTRIES BY ITS PARTNER N.A.P. ALAGAPPAN RAMDAS

JUDGEMENT

(1.) The Appellant is the Defendant in OS. No. 61 of 2004 on the file of the Principal District Court, Tuticorin, which had been filed under Sections 105 and 106 of the Trade and Merchandise Marks Act, 1958 and under Order 7, Rule 1 of CPC, for permanent injunction restraining the Defendant from passing off the goods of the Defendant by using a deceptively similar mark of the Plaintiff and for damages of Rs.60,000/- for the loss of profit for three months between August 2003 and October 2003 and for a direction to render true and proper accounts of profits made by the Defendant and for mandatory injunction directing the Defendant to deliver to the plaintf all sales promotion literature, stationery and packing materials and for a further direction to pay a sum of Rs.10,000/- towards damages for the loss of goodwill and reputation and for costs.

(2.) The Plaintiff, M/s. Agsar Match Industries, which is a registered Partnership Firm, having its Office at Tuticorin, had claimed that they are the owners of the trademark with respect to the products, red oxide and colour oxide, namely, the words STAG BRAND with a symbol of a picture of a stag and the words SUPER STAG with a picture of a stag. The actual pictures had been annexed with the plaint. It had been stated that originally, M/s.Agsar Match Industries had coined and adopted the above trademarks from 30.3.1985 and has been trading and operating them across the country. The said Company was a component of a composite Hindu Joint Family business, called Agsar Group. Three branches, namely, Shenbaga Nadar Group, Arumugachamy Nadar Group and Ganesa Nadar Group became divided in 1989 and 1996. The divided families commenced their own businesses and the Defendant Firm is one of such business unit started by N.S. Jeyamanoharan, who belonged to the Shenbaga Nadar Group, which moved out of the family in 1989.

(3.) There were two other groups, namely, Alagappa Nadar branch and Rajamanicka Nadar branch, who remained joint and retained the Company M/s. Agsar Paints P Limited along with the business, trademark and goodwill. The said Company assigned the said trademark to the Plaintiff, which is another sister Company of the branch of the family by means of a assignment deed dated 15.6.1996. The Plaintiff and their predecessors had spent considerable money for advertisements to acquire reputation and maintain the trade name. They have acquired goodwill and reputation throughout India and the trademark has come to be connected with the business of the Plaintiff. M/s. Agsar Paints P Limited had applied for registration in 1995 before the Trademark Registry, Mumbai. The Plaintiff had impleaded themselves since they were assigned with the trademark. Claiming that they are the absolute owner of the said trademark and good will and further claiming that the Defendant has no right over the same, the suit has been filed.