H M SARAIYA Vs. AJANTA INDIA LTD

JUDGEMENT

(1.) The present notice of motion is taken out by the plaintiffs seeking reliefs that the defendants should be restrained from using the trade mark 'Ajanta' in respect of the non-medicated toilet preparations including tooth paste, soaps, shaving cream, shampoo and allied goods. The said injunction is sought by them on grounds of both infringement of "trade mark" and "passing off". However, the learned counsel appearing for the plaintiffs has fairly stated that he is pressing relief only on the basis of a "passing off" action in view of the fact that the defendants mark "Ajanta" is registered for the tooth paste. He has further submitted that though the reliefs in the motion are sought in respect of various non-medicated toilet preparations including soaps, shaving cream, shampoo, cosmetics and allied goods, for the purpose of the present notice of motion he is restricting his claim to passing off only in respect of tooth paste.

(2.) Some of the material facts of the present case, briefly enumerated, are as under:-

(3.) In the year 1950 a company known as Bombay Brush Co. which was a partnership firm accepted a trade mark "Ajanta" in respect of tooth brushes. In 1958, a company known as Bombay Brush Co. Pvt. Ltd., was incorporated by the erstwhile partners of the partnership firm Bombay Brush Company who took over the business of the said partnership firm. It is the case of the plaintiff that during the period 1958 to 1987 the Bombay Brush Co. Pvt. Ltd., and its licensee Bombay Brush Baroda Pvt. Ltd., and Bombay Brush Belgaum Pvt. Ltd., used extensively the trade mark in respect of tooth brushes and shaving brushes. On 3.9.1959 the trade mark 'Ajanta' was registered under Registration No. 191915 in respect of brushes falling in Class 21 in favour of the said Bombay Brush Co. Pvt. Ltd. On 19.2.1964 one Mahipal v. Saraiya obtained registration of the word mark 'Ajanta' in respect of non-medicated toiletry preparations, cosmetics and perfumes falling in Class 3 of the schedule to the Trade and Merchandise Marks Act, 1958.