DURGA FABRICS, CHENNIMALAI REPRESENTED BY ITS PARTNER, A.M. PATNASWAMI MUDALIAR AND ORS. Vs. SRI DURGA TEXTILES, KARUR REPRESENTED BY ITS PARTNER K.N. RAMAMURTHI

JUDGEMENT

(1.) THE defendants in O.S. No. 31 of 1974 on the file of the Court of the District Judge of Coimbatore are the appellants. The plaintiff is a firm known as "Sri Durga Textiles" carrying on business in the sale of bed -sheets, towels, napkins, pillow -covers, and curtain cloth with the registered trade mark of Sri Durga Textiles. The firm is registered under the Indian Partnership Act. The first defendant is a firm carrying on a business at Chennimalai manufacturing the same type of goods like bed -sheets under the name and style of "Durga Fabrics". Defendants 2 to 5 are the partners of the said firm. The plaintiff firm was started in the year 1956 and the partner K.N. Ramamurthi has been a partner right through, though there have been other changes in the partnership on account of death or retirement. The case of the plaintiff was that it was continuously and exclusively using the business name "Durga Textiles" and the trade mark "Sri Durga Textiles" in -connection with its goods. The turnover, which was Rs. 1,65,000 in 1956 -57 had gone upto Rs, 7,75,000 in the year in which the suit was filed. The income also increased from Rs. 9,750 to Rs. 26,400 in this period. The plaintiff alleged that by continuous and exclusive user from the year 1956 of the trade mark "Sri Durga Textiles" in connection with the textile goods manufactured and sold by it, it had acquired an exclusive right. The trade mark was also registered under the Indian Trade and Merchandise Marks Act, 1958 on 18th October, 1972. The, plaintiff, therefore gave notice to the defendants requiring them to desist from using the name "Durga Fabrics" as it was likely to mislead and confuse the public in relation so its goods. The defendants in their reply denied the allegations contained in the plaintiff's notice and proposed to send a further reply, but it did not send any. In these circumstances, the plaintiff carne forward with the present suit praying for a permanent injunction restraining me defendants from passing off textile goods like bed -sheets under the business name -'Durga Fabrics" or with the offending mark of 'Durga Textiles" or any colourable variations thereof and for consequential reliefs including the relief ot accounting.

(2.) THE defendants resisted the suit by contending that they were the manufacturers of handloom textiles for about 20 years prior to the suit at Cnennimalai in Erode Taluk and that they have gained reputation all over India and also abroad. According to the defendants, the plaintiff was not manufacturing any such goods, but merely trading in them. It was also alleged that the defendants had actually "registered" their own trade mark as "Durga Fabrics" with the competent authority. The further case of the defendant was they had given all the particulars in the labels used by them, so that there was no likelihood of their goods being mistaken for the plaintiff's goods. If was also pointed out that if the plaintiff had any grievance as against the defendants, the only remedy was to apply for rectification of the trade -mark register before the appropriate authorities and for cancellation of the trade mark registered in favour of the plaintiffs.

(3.) THE main issues in the case ware: 1. Whether the plaintiff firm is exclusively entitled to the trade name of 'Durga Fabrics'. 2. Whether the defendants have been trading under these names even from an earlier point of time and have acquired rights on that basis 1 and 3. Whether -the plaintiff is entitled to the injunction asked for ? There were other issues as regards, account ing, limitation, surrender of labels and maintainability of the suit. For our present purpose, it is unnecessary to refer to those issues.