KALI AERATED WATER WORKS TIRUCHIRAPALLI Vs. RASHID

JUDGEMENT

(1.) Kali Aerated Water Works was a firm of registered partnership carrying on business in the manufacture and sale of aerated water of many kinds in the trade name of Kali Mark. They started the business in the year 1948. The trade name of Kali Mark was registered in the Trade Mark Registration office at Bombay on 19-02-1948. It was being renewed from time to time, and the last of such renewal was on 19-02-1970 for a period of seven years. However, after the expiry of the said period of seven years, no further renewal of the trade mark was made. The partnership was carrying on business with head office at Virudhunagar with branches at Tiruchirapalli, Kumbakonam, Madras, Karaikudi, Palayamkortai and Madurai. Under a registered deed of dissolution dtd. 31-03-1977, the firm was dissolved and at the time of dissolution there were ten partners. The firm was dissolved with effect from 1-4-1977. Under this deed of dissolution, the business of the dissolved partnership at Tiruchirapalli was given to the plaintiff. The document provided that the two individual partners to whom the Tiruchirapalli branch was allotted shall take over with its assets and liabilities including the stock-in-trade, goodwill etc. By an amendment deed dt/-7-04-1977, this clause was amended and the plaintiff was to take over the business at Tiruchirapalli 'with its assets and liabilities including the stock-in-trade, goodwill, name and style etc.' Clause 5 of the dissolution deed further provided that the parties who take over the respective branches or head office with assets and liabilities as stated in the deed shall be entitled to run the business in the trade name of Kali Mark either individually or by a partnership in the name and style of Kali Aerated Water Works and the other parties shall not have any claim or right over such business or businesses.

(2.) After thus taking over the assets and liabilities etc. of the Tiruchirapalli branch, the two partners of the dissolved firm constituted themselves as a registered partnership under the name and style of Kali Aerated Water Works, Tiruchirapalli, and it is this firm at Tiruchirapalli, that has filed the present suit out of which the L.P. Appeal arises.

(3.) The plaintiffs were manufacturing and selling under the name of Kali Mark various kinds of aerated waters in Tiruchirapalli. The defendants who appear to be the erstwhile employees of the plaintiff firm started a business in the name and style of Sri New Kali Mark Soda Factory and were manufacturing aerated water and selling them under the trade name Sri New Kali Mark. The plaintiffs filed the suit for a declaration of its title for the exclusive use of the trade mark and trade or business name of Kali Mark and for restraining the defendants and their men from using their trade mark Sri New Kali Mark in relation to the aerated waters manufactured and are sold by them and for rendition of a true account of the sale. This prayer was made on the ground that the plaintiffs have acquired an exclusive right to use the words Kali Mark both as a trade mark and also as a trade name by long user and none else is entitled to use the trade mark or trade name for aerated water business. Their further case was that a comparison of the plaintiffs' label and the defendants' label will clearly show that the defendants' label is a colourable imitation of the plaintiffs' label, and a comparison of the bottles will also show that the defendants' bottle with their label is practically similar to the plaintiffs' which is likely to mislead the purchaser who is accustomed to purchase the plaintiff's goods in purchasing the defendants' goods as the plaintiffs' goods. In other words, the plaintiffs' case was that there was an implied representation by the defendants to the purchaser that the goods offered by them for sale is the manufacture of the plaintiffs. They have also pleaded that they have been damnified.