CHIMANLAL NARSAJI SUHAN Vs. PARASMAL MITHALAL PARMAR

JUDGEMENT

(1.) THIS Notice of Motion has been taken out by the plaintiff praying for an order of injunction restraining the defendants form in any manner using in relation to milk cans and buckets the trade marks bearing devices of Cow and or Ox or words COW BRAND and/or OX BRAND or any other mark or word or device deceptively similar thereto in any manner whatsoever so as to infringe the plaintiffs's trade mark No. 307852. Similar injunction is sought in respect to the trade mark OM PARAS in relation to sieves.

(2.) ACCORDING to the case pleaded in the plaint, the plaintiff adopted and commenced use of trade mark and label mark consisting of the word "om PRABHAT" commenced use of trade mark and label mark consisting of the word "om PRABHAT" written in English and device of "cow" in respect of buckets, milk cans and sieves in the year 1972. The trade mark and label are at Exhibits A-1 and A-2 to the plaint. The essential features of the trade mark given in Exhibit A-1 are the device of Cow within two curved lines. Above the said device of Cow, the word OM PRABHAT is represented along the top curved line and the bottom curved line similarly followed along with the word BOMBAY so as to form the ground or base of the said device. The plaintiff commenced use of the trade mark OM PRABHAT is respect of sieves also. On 20th August, 1975, the plaintiff applied for registration of the trade mark, Exhibit A-1, under the Trade and Merchandise Marks Act, 1956 (hereinafter called "the Act") and the same has been registered under No. 307852 in respect of buckets included in Class 21 for sale in the State of Maharashtra, Gujarat, Madhya Pradesh, Union Territory of Goa, Daman and Diu. On 18th July, 1979, the trade mark OM PRABHAT was registered under the Act as a trade mark No. 351518 in respect of sieves, milk cans and winnowing baskets. According to the plaintiff the device of cow is the most essential integral and memorable part of the trade mark registered under No. 307852. The milk dhabbas, milk cans and buckets of the plaintiff bearing the said label are identified by the members of the public as the COW BRAND products of the plaintiff alone and of none else in the market. In or about 1990 the plaintiff added words GAI CHHAP above the upper curved line and commenced describing the said device in Devnagiri script also. The said trade mark is continued to be used till today in respect of buckets including milk cans. Thus the complete trade mark shows the device of cow within two curved lines, one each at the top and bottom, preceded at the top by the word OM PRABHAT above the top curved line followed by words COW-BRAND writed in devnagiri script and the word BOMBAY appearing below the bottom line. This trade mark is embossed on the product. It is stated that the plaintiff has also been using the trade mark consisting of the words OM PRABHAT registered No. 351518 in respect of sieves since 1972. The said trade mark OM PRABHAT is written within an oval-like device and is embossed on the product in addition to the printing on the outer package. According to the plaintiff the products bearing the aforesaid trade marks of the plaintiff are very popular.

(3.) IN or about 1993, the plaintiff came across an advertisement bearing No. 493945 in the Trade Mark Journal No. 1067 dated 16th November, 1993 for a label mark sought to be registered by the first defendant in respect of milk cans and buckets in respect of which the plaintiff's trade mark is already registered. The essential feature of the said trade mark sought to be registered was a device of a cow enclosed within two curved lines. The words COW BRAND were written under the top curved line and the word BOMBAY was written below the bottom curved line. Since the said trade mark was nothing but a slavish copy of the plaintiff's trade mark No. 307852 the plaintiff opposed the registration of the said trade mark by filing a notice of opposition in or about 9th March, 1994. In the reply filed by the defendant to the opposition it was contended that he had applied for registration of another trade mark bearing No. 493946 having a device of OX and has been using both the trade mark. On taking search at the Trade Marks Registry, the plaintiff found that the said trade mark had been advertised in the Trade Mark journal No. 1064 dated 1st October, 1993 in respect of milk cans in Class 21. The essential feature of the said trade mark sought to be registered was a device of an OX enclosed in two similar curved lines. The words OX BRAND were written under the top curved line and the word BOMBAY was appearing below the bottom curved line. The trade mark was proposed to be used in respect of milk can. The plaintiff has inadvertently not opposed the said trade mark bearing the device of OX. Thereafter the plaintiff came across another advertisement in the Trade Mark Journal No. 1102 dated 1st May, 1995 of a trade mark consisting of the device of cow within two curved lines and words COW BRAND written above the said device and the word BOMBAY below the bottom curved line. The said trade mark was advertised under Application No. 493946 B. This was stated to be the correct mark to be read and deemed under the said application. This application was also opposed by the plaintiff. It is stated that the entire label under application referred to above is also a slavish copy of the plaintiff's registered label mark except that the word OM PRABHAT has been replaced with the words COW BRAND. On enquiries having been made the plaintiff found that no goods bearing the marks COW BRAND and OX BRAND were available. However, it came to the plaintiffs notice in July, 1995 that the defendant had commenced the sale of milk cans and buckets bearing the trade marks COW BRAND and OX BRAND and had embossed the same on his goods. The plaintiff also learnt that in or about the first week of August, 1995 the defendants have also commenced sale of sieves being the trade mark OM PARAS which is deceptively similar to the word OM PRABHAT. Thus it is pleaded that the defendants have infringed the plaintiff's registered trade marks Nos. 307852 and 351518. The plaintiff by an advocate's notice called upon the defendants to cease and desist from infringing the plaintiff's trade mark and further from using the said marks so as to pass off their goods as and for that of the plaintiff. These facts have been reiterated in the affidavit in support of the notice of motion.