PATTATHARASIAMMAN TEXTILES REGISTERED FIRM Vs. A LAKSHMANAN

JUDGEMENT

(1.) THE appellant/plaintiff has filed this appeal as against the judgment and decree dated 8.6.2001 made in O.S.No.2 of 1999 on the file of learned Principal District Judge, Erode.

(2.) THE short facts of the appellant/plaintiff's case are as below: (i)THE appellant/plaintiff, a firm registered under the Indian Partnership Act as two partners (1) N.Nachimuthu and (2) P.Loganathan. THE partnership deed has been duly registered on 18.3.1997. THE partners of the appellant/plaintiff firm formed the appellant firm in the name and style of "Shri Pattathu Amman Textiles" as per their original partnership agreement dated 29.101980. THE business has commenced from 20.10.1980. THE firm has been registered under the TN General Sales Tax Act, 1959 and also under Central Sales Tax Act, 1956.(ii)THE appellant/plaintiff is one of the leading manufacturers and merchants of textile itself goes from the textile town of Kumarapalayam for more than 18 years and they are manufacturing handloom textile lungis and marketing them throughout India. THE appellant/plaintiff has acquired considerable Good Will not only among the trading community but also among the purchasing public cents they maintain very high quality of raw materials and yarn for the lungies sold by them. With a view to protect Good Will and reputation of their quality lungies, the appellant in the year 1984 has honestly adopted a distinctive trade mark consistent of a device of an Aeroplane with the word jet brand reputed in English, Tamil and Hindi in blue, red and yellow colour combination. THE appellant has applied for the registration of the Trade Mark as per the relevant provisions of Trade and Merchandise Mark Act, 1958 before the Registrar of Trade marks at Chennai on 02.02.1987 in clause 24 in respect of textile cloth which has been numbered as Appl.No.467004. THE Trade mark has been registered and has been duly renewed and the same is in force and still remains on the Registrar of Trade Mark. THE legal certificate of registration issued by the Registrar of Trade mark has been filed.(iii)THE appellant/plaintiff's turn over for the 5 years are mentioned as follows:For the year 1993-94 Rs.2,90,11,360.00 (crores)For the year 1994-95 Rs.2,94,05,129.25 (crores)For the year 1995-96 Rs.2,56,74,784.75 (crores)For the year 1996-97 Rs.3,37,62,860.00 (crores)For the year 1997-98 Rs.2,65,58,875.00 (crores)(iv) After seeing the hard earned Goodwill and reputation of the appellant/ plaintiff Trade mark a few dishonest traders from the textile town of Kumarapalayam recently have started affixing a deceptively similar trade mark as that of the appellant's mark on their products such as lungies of inferior quality and started selling them in the market as that of the appellant. By this act of infringement and passing off, they have not only encroached upon the ```````````````````````````````````````````````````hard Goodwill of the appellant, but also has brought down the sales figures. THE damage caused to the reputation of the appellant/plaintiff's Trade mark cannot be compensated in terms of money alone easily. THE respondent/defendant and others have no right to use any Trade mark, which is identical with and or similar to the Trade mark of the plaintiff.(v) THE literary population of our country is only 51% and that too English knowing persons are only 19%. Most of the customers of the appellant are purchasing the quality lungies manufactured by it, by looking at the device of the Aeroplane, the placement of the words of the label and by the colour combination of the plaintiff's Trade mark.(vi) THE appellant/plaintiff recently has noticed that the respondent/ defendant has started selling their inferior quality of lungies deceptively, similar to that of the Trade mark of the appellant and the appellant has issued a warning notice to the trading name of the respondent/defendant on 19.2.1997 and no reply has been sent.(vii) A perusal of the respondent/defendant's label which consists of 'Naya Jet Brand', the manner of placement of the device of Aeroplane, the colour combination of the label in blue, red and yellow the size of the label, the placement of the trading style indicate that the respondent/defendant has dishonestly adopted this deceptively label with a calculated intention to deceive the unwary purchaser of ordinary intelligence. A comparison will show that the respondent/defendant has added only the word "NAYA" as extra in his label by imitating the features of the appellant/plaintiff's label. THE respondent/defendant has purposely adopted the trading style similar to that of the appellant. Based on the police complaint dated 15.12.1997 at the Erode Police Station, an FIR No.2286/97 has been registered under Section 78 and 79 of the Trade and Merchandise Mark Act under Section 420 I.P.C. Some incriminating properties were seized by the police and the criminal investigation is pending. On 21.12.1998 the respondent/defendant has filed a suit at the First Additional District Munsif Court, Erode in O.S.No.666 of 1998 praying for the relief of declaration and consequent injunction restraining the appellant/plaintiff in the suit from preventing the respondent/defendant from doing the business under the name and style of 'Naya Jet Brand Lungies' Sri Periyur Amman Textiles, South India with the respondent's label. If the respondent/defendant is not restrained by means of a permanent injunction, the appellant/plaintiff cannot continue their business of selling lungies under the Trade mark of JET Brand and irreparable damage and loss will occur, which cannot be easily compensated in terms of money. THE respondent/defendant is liable to pay damages to the appellant/plaintiff. (viii) THE damages can be ascertained only on production of accounts of the respondent/defendant from the financial year 1996-97. Yet the appellant tentatively estimates the value of the compensation by way of damages at Rs.1000/- and paying a Court fee for it and it undertakes to pay the difference of Court fees after ascertaining the exact amount of damages. Hence, the suit is laid for the grant of permanent injunction restraining the respondent/defendant, his men, agents, dealers, stockists assigners and others claiming under the respondent/defendant from using or attempting to use or enabling others to use the word NAYA JET, the device of the Aeroplane or in combination thereof, and/or in any other Trade mark identical or deceptively similar or in any other manner infringing the appellant/plaintiff's Trade mark registered in Regn.No.467004 in Clause 24 in respect of Textile cloth including lungies and for the relief of permanent injunction restraining the respondent/defendant, his agents, dealers, stockists and claiming others thereunder from passing off, or attempting to pass off or from enabling others to pass off the defendant goods and for an issuance of a direction to the respondent/defendant to produce before the Court all his accounts of sales and profits for determining the ultimate compensation payable by the respondent/defendant to the appellant/ plaintiff as damages etc.

(3.) THE trial Court on an appreciation of oral and documentary evidence and after scrutinising the available materials on record has come to the conclusion that the appellant/plaintiff are not entitled to claim the reliefs prayed for and resultantly, dismissed the suit without costs.