PANDUGULA VALI BASHA Vs. N MOHAMMED HARIS

JUDGEMENT

(1.) The defendant in O.S.No. 1 /91 on the file of the District Judge, Kurnool, aggrieved by the Judgment and Decree, dated 30-1-1995, preferred the present appeal. The respondents herein are the plaintiffs in the said suit. The suit was instituted under Sections 105 and 106 of the Trade and Merchandise Marks Act, 1958 praying for the relief of permanent injunction restraining the appellant herein-the defendant, his men, agents from using the offending trade mark 'Photo Hussain Basha Beedilu or using similar trade mark of the plaintiffs or making use of such labels or passing off the goods-Beedies of the defendant with such mark and also further prayed for an order to deliver up all the infringing labels and marks available with the defendant to the plaintiff for destruction and also further prayed for awarding of damages of Rs.1,000/- for passing off the goods and for such other suitable reliefs. The learned Judge on appreciation of the evidence of P.Ws.1 and 2 and D.Ws.1 to 3, Exs.A-1 to A-17 and Exs.B-1 to B-11, decreed the suit granting permanent injunction restraining the defendant and his men for using the offending Trade Mark or similar Trade Mark with the design, colour, deceptively similarto the trade mark of the plaintiffs or making use of such labels or passing off his goods with such marks and also further directing the defendant to deliver all the infringing labels and marks available with him to the plaintiff for the purpose of destruction, but however, negatived the claim relating to damages. Hence, the appeal.

(2.) Submissions made by Sri Jagapathi, the Counsel representing the appellant :- Sri Jagapathi, the Counsel representing the appellant-defendant had taken this Court through the respective pleadings of the parties and the issues settled and the findings recorded by the Trial Court and would contend that there are distinct striking dissimilarities between the Photo Hussain Jadi Beedi and Photo Hussain Basha Beedi and the Counsel also would maintain that the photos displayed on the labels also were different by which the same can be easily identified and hence there is no confusion likely to be caused in the minds of the customers in between Photo Hussain Jadi Beedi and Photo Hussain Basha Beedi. The learned Counsel demonstrated the dissimilarities by pointing out the relevant exhibits in this regard. The learned Counsel in elaboration made submissions about the evidence of D.Ws.2 and 3 and would content that in the light of the same, it is clear that these two brands of beedies are distinguishable. The learned Counsel also would contend that the Trial Court erred in relying upon the evidence of P.W.2, a customer, in preference to the evidence of D.Ws.2 and 3. The learned Counsel also would comment that the non-reply to the notice cannot be made a serious ground. The Counsel pointed out that the reasoning adopted by the Trial Court that the masses of the relevant districts would be misled though the photos are different and marks are different, definitely cannot be sustained.

(3.) Submissions made by Sri Laxminarayana Reddy, the Counsel representing the respondents-plaintiffs:- The learned Counsel had taken this Court through the findings recorded by the learned Judge and also demonstrated the colour and wrapper and would explain that the users are illiterate persons of Kurnool and Cuddapah Districts. The learned Counsel had taken this Court through the evidence available on record and also the findings recorded by the Trial Court and would submit that the similarity in colour and the similarity in names, though there is some slight difference between Hassan and Hussain would definitely mislead any ordinary customer in view of the deceptive resemblance. The learned Counsel also would comment that the defendant-appellant is claiming an un-registered trade mark. The learned Counsel placed strong reliance on several decisions in this regard.