MANMOHAN GARG Vs. RADHAKRISHAN NARIANDAS FIRM

JUDGEMENT

(1.) This is an appeal under Clause 10 of the Letters Patent arising out of judgment and decree dated 19.2.1991 in First Appeal No. 43/81, whereby the judgment and decree dated 16.3.1981 passed by the District Judge, Vidisha has been reversed.

(2.) Respondent/firm filed a civil suit against an action of infringement of trade marks and for passing off in the Court of District Judge on 24th October, 1969.

(3.) Briefly stated the plaintiff's case is that the trade mark 'Khargosh Chhap' label was first registered with the sub-Registrar of Bombay on 26th January, 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. It is alleged that looking to the popularity, reputation and huge sale commanded by plaintiff's 'Khargosh Chhap' Bidis, the defendant/appellant herein 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' was not a registered trade mark. It was alleged that the 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. Another relief prayed by way of nominal damage, Rs. 1,000 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.