RADHAKISHAN NARAYANDAS PARTNERSHIP FIRM Vs. MANMOHAN GARG

JUDGEMENT

(1.) AN action for infringement of trade mark and for passing off came to be tried in the plaintiff's suit instituted in the Court of District Judge, Bhopal, on 24-10-1969. Against the judgment and decree passed on 16-3-1981 by learned District Judge, Vidisha in Civil Suit No. 19a of 1970, the instant appeal is preferred by the plaintiff on his suit being dismissed in toto.

(2.) SHORTLY put, the plaintiff's case is that the trade mark "khargosh Chhap" label was first registered with the Sub-Registrar of Bombay on 26-1-1928 and thereafter under the Trade Marks Act, 1940, it was registered on 14-8-1945 in respect of bidis to be sold under that trade mark throughout India except Madras and Mysore. The Registration number of the label was 112689. Subsequently, the jhilli (tissue-paper wrapper) was also got registered on 2-7-1954 and it was allotted Registration No. 164797. Both registrations were duly renewed from time to time. Looking to the popularity, reputation and huge sale commanded by plaintiff's "khargosh Chhap" bidis, the defendant started manufacturing and selling bidis using a label which was deceptively similar to and colourful imitation of plaintiff's "khargosh Chhap" registered trade mark in respect of "design", "layout", "get-up", "colour scheme" and "setting". Defendant's "khargosh Chhap" label was not a registered trade mark. Defendant's prejudicial activities caused the plaintiff serious loss and defendant made dishonestly unlawful gain to himself at the cost of plaintiff's business. Besides suffering loss of profit on account of defendant's wrongful action, the plaintiff also suffered loss of reputation inasmuch as customers had begun feeling and expressing that the quality of the plaintiff's bidis had deteriorated. Among other reliefs prayed, by way of nominal damage, Rs. 1,000/- was claimed and injunction was also prayed to restrain the defendant from using in any form, plaintiff's "khargosh Chhap" label on the bidis sold by him.

(3.) ON facts, defendant's plea was that he had started manufacturing bidis under the trade name "bakri Ka Bachha" (goat cub) in 1950-51 and prior to him, M/s. Surajmal Suganchand, resident of Sehore, in erstwhile Bhopal State, were manufacturing the said bidi and they had got registration of the trade mark on 2-3-1936 at Sehore in Bhopal State and thereafter at Calcutta on 7-12-1936. Shah Krishnakumar Chimanlal, resident of Sironj had got assignment from them of the said trade mark and a registered document was executed in that regard on 22-12-1956. From him, the defendant got an assignment of the said trade mark in virtue of a registered deed, executed on 9-11-1957. There was a vast difference in respect of "design", "layout", "get-up", "colour scheme" and "setting" between the labels respectively of "goat-cub" bidis sold by the defendant and "khargosh Chhap", sold by plaintiff. The plaintiff had no cause for either an action for infringment or for passing off. Plaintiff had knowledge since before 1951, 1955 and 1957 of use of the labels in question on the bidis sold thereunder, but he took no action and his suit was, therefore, barred by acquiescence. There was no sale of plaintiff's bidis in District Vidisha and plaintiff's suit was motivated. Having noticed that the bidis manufactured and sold by defendant in Sironj Pargana of District Vidisha was gaining popularity and capturing the market, plaintiff instituted the suit for causing unlawful loss to the defendant.