NATIONAL CARBON CO INDIA LTD Vs. RAJ KUMAR

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of an order made on an application for the grant at an interim injunction. The plaintiff-appellant, a limited Company, is a manufacturer and seller of flash lights, dry cell batteries for use in flash lights and other articles. It carries on its business throughout India. It is the owner of the trade mark "eveready" which is registered in the register of trade marks under Nos. 6727 and 6728. The "eveready" flash lights which are in dispute in the present case have impressed on their bottom end caps the word "eveready". The trade mark "eveready" is in block capital letters arranged in a distinctive pyramidal form. There are five groups of distinctive parallel indentations each group comprising of three parallel lines running vertically on both sides of the trade mark. The said groups are spaced and arranged in a distinctive manner with the words "made in U. S. A. " appearing underneath the lower group of indentations. The shell of flash lights has also its own scheme of colour and chromium plating.

(2.) THE defendants are the manufacturers of flash lights with the trade mark 'lit Ready' em-bossed upon them and have placed them on the market for sale. The plaintiff's case is that the get-up of the defendants' flash light cases bears a close resemblance to the get-up of the plaintiff's lash light cases and that the ignorant and illiterate section of the public in India is very likely to be confused and the goods of the defendants may pass off as the goods of the plaintiff causing great injury to the plaintiff. The plaintiff, therefore, sued for the grant of a permanent injunction restraining the defendants from selling the disputed flash lights in the market and for other reliefs and also applied for a temporary injunction to the same effect.

(3.) THE defendants' case is that the defendants' flash lights do not infringe the plaintiff's trade mark and cannot be taken to pass off as the plaintiff's good.