S P S JAYAM Vs. GAJALAKSHMI AND CO

JUDGEMENT

(1.) THIS proceeding under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) is for a permanent injunction restraining the defendant, his agents and servants from manufacturing and selling tooth powder with the trade mark label marked document No. B filed along with the plaint or any other colourable imitation of the plaintiff's trade marks A. 1 and A. 2 and for rendition of accounts by the defendant of the profits made by the defendant by the use of the offending trade mark labels from the date of inception and the payment of the same to the plaintiff, and directing the defendant to surrender all unused offending trade mark labels in their possession and also block, dice, etc. The suit was originally laid as against the first, defendant and later, on application No. 1367 of 1976 the second defendant was impleaded. The plaintiff's case is that it is a registered firm engaged in the business of manufacture and sale of tooth powder among other articles under the name and style of S.P.S. Jayam and Company and Vel Chemical Works at No. 25, East Nappalayam Street, Madurai. 1. Its tooth powder is known as Gopal Tooth Powder and registered under the provisions of the Act as early as 30.4.1947. The said trade mark samples in different colour designs are produced along with the plaint as Document Nos. A.1 and A.2 Along with the above also has been registered the design of a "Vel" as an associated trade mark under the provisions of the Act on 25.10.1957. Both the registrations have been renewed from time to time and they are in current force. Thus, the plaintiff is the present owner of the said registered trade mark labels. The plaintiff's trade marks had become very popular among the public and as a matter of fact, the plaintiff had popularised the trade marks by costly, extensive, and wide advertisements through newspapers, cinema slides, all-India Radio, Ceylon Radio, etc. and a sum ranging between Rs. 1.5 to 2 lacs is being spent by the plaintiff yearly on such advertisements on the tooth powder manufactured by the plaintiff. The product is being sold by the plaintiff in India and abroad. It has established a name and reputation in the market; the trade mark is associated with high quality of the product in the market. The plaintiff has been periodically publishing the trade mark caution advertisements in newspapers in different languages and warning against using any label which is similar to or which is a colouable imitation of the trade mark of the plaintiff. About a month prior to the institution of the suit, the Managing Partner of the plaintiff on his usual periodical business tour of inspection of the market, was surprised to find that the defendant is selling tooth powder with a brand name of "Balaji Tooth Powder" in packets very similar to those of the plaintiff. In the City of Madras wherever the plaintiff's products are being sold, the products of the defendant 'Balaji Tooth Powder' with the infringing labels are being sold on a large scale. The defendant is thus guilty of having infringed the plaintiff's trade mark and also passing off his goods as those of the plaintiff. The defendant is carrying on business in the name and style of Shri Gajalakshmi and Company at No. 8, Muthiah Mudali Street, Old Washermenpet, Madras 21. Besides, the size, get-up and the colour scheme of the infringing labels are very similar to those of the plaintiff. The majority of the persons using tooth powder manufactured by the plaintiff, are illiterate and as such, buy the tooth powder looking at the labels. Because of the deceptive similarity of the infringing labels with the labels of the plaintiff, the buying public are deceived and are put into a state of confusion. The distinctive features of the plaintiff's trade mark are Gopal Tooth Powder in English and below that...............in Tamil, in dark blue and light brown background as well as in red and white background. The defendant had adopted the same arrangement and was using the same design with red and white background as that of the plaintiff. The folding is deceptively and strikingly similar to that of the plaintiff. The Tamil words are also the same. The figure of "Lord Venkatesh" is substituted in the place of Child "Krishna" and is deceptively similar to that of the plaintiff's. The plaintiff further states that the tooth powder manufactured by the defendant is inferior in quality and lesser in price and therefore, the introduction of the defendant's goods with the infringing mark had adversely affected the plaintiff's business considerably and is likely to spoil the good name earned by the plaintiff. Hence, the suit for the reliefs as earlier stated.

(2.) THE first defendant did not file any written statement though represented by counsel. I must state here that though the trial went on, without the learned counsel for the first defendant or the first defendant himself participating in the proceeding, when the matter was taken up for argument, learned counsel for the first defendant reported "no instructions."

(3.) IN support of his contention, he drew my attention to three decisions, AIR 1946, P.C. 109 (Subbiah v. Kumaraval), (1963) Vol. L RPC 12 (Bryant and May Ltd. v. United Match INdustries Ltd.) and AIR 1972 SC 1359 (Parle Products v. J.P. & Co. Mysore). IN AIR 1946, PC 109, it is ruled.