P L ANWAR BASHA Vs. M NATARAJAN

JUDGEMENT

(1.) The plaintiff has preferred this appeal against the dismissal of his suit in 0. S. No. 4 of 1972 on the file of the District judge, North Arcot,

(2.) The plaintiff, a manufacturer of beedies at Vaniyambadi under the name fish beedies' with wrappers and labels showing the picture of fish in water, applied to the Court for declaration of his right to 'use the trade mark Meen Beedies to the beedies manufactured by him as shown in Annexure II to the plaint and for permanent injunction restraining the defendant who is also engaged in the. Business of manufacture of beedies at Vellore from using the infringed trademark. The plaint averred that the plaintiff has been using his trade mark of fish in water encircled with an oval ring with the letters PLA on either side of Oval ring within a circle as set out -in Annexure I to the plaint with the trade name Meen Beedi both in Tamil and Urdu beneath it and in Telugu above it with the words 'Fish Mark Beedi and Meen mark Beedi on either side of it, that the beedies of the plaintiff are of high quality and were very popular with the beedi smoking people and that he has also spent a large amount in advertising his beedies in journals and news Papers and wall posters including exhibition of slides in Cinemas. It was further averred that he is using this trade mark from 1959 onwards uninterruptedly, that he has also registered the trade mark, under the Indian Copyright Act, as early as in 1965, that he has also applied to the Registrar of Trade Marks for registration of the trade mark under the Trade and Merchandise Marks Act and that the said application is pending registration. The plaint further stated that the defendant who was also a manufacturer of beedies has used the trade mark of the plaintiff and thought of passing off his inferior goods as those of the plaintiff in the year 1972. It is also stated that by such passing off the goods, he has caused confusion in the mind of the public and has also caused loss to the plaintiff. The plaint also stated that the mark used by the defendant is identical with the trademark used by the plaintiff, and that any unwary beedi smoking Person is likely to be -confused. The plaintiff therefore prayed for the reliefs already stated.

(3.) The defendant in his answer denied the allegation in the plaint that he thought fit to Pass off his goods as those of the plaintiff, and stated that the beedies manufactured by the defendant are wrapped in cartons of different colour, that his beedies are in great demand and the beedi smoking people have come to associate the name 'flying fish beedies' and. the design of the defendant's goods, as articles manufactured by the defendant and that the beedies of the defendant are superior in quality to those of the plaintiff and there is also difference in size and can easily be distinguished. The defendant also denied .the allegation that his beedies were sold in the market Only from October 1972. Finally he contended that the court has no jurisdiction to entertain the suit as the plaintiff has not registered the trade mark under the Trade and Merchandise Marks. Act.