CHANDRA BHAN AGARWAL Vs. ARJUNDAS AGARWAL

JUDGEMENT

(1.) This is an appeal from the judgment and order of S. C. Ghose, J. on an application under Section 107 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) passed on February 26, 1973.

(2.) The respondents who are partners of H. P. Textile Mills carry on business in their firm name on large scale as manufacturers of and dealers in hosiery goods with market throughout India. They trading in their firm name are the owners of a trade mark in 'A' Register which is set at page 271 of the Trade Mark Journal No. 507 of July 16, 1970. The registration recorded therein is as follows: Class 25 The Device of the Mark. Debanagari Characters appearing on the Mark represent the word 'Dora' 252040 -- October 3, 1968. Arjundas Agarwal, Krishan Kumar Agarwal and Kashmirilal Agarwal, trading as H. P. Textile Mills, 10A, Vivekananda Road, Calcutta: Manufacturers. User claimed since 25-10-62 (Calcutta) Gangees (Underwear) Registration of this Trade Mark shall give no right to the exclusive use of the letters "TM" and the device of a man. It is a condition of registration that the blank spaces appearing on the Mark shall be left blank when the mark is in actual use."

(3.) The respondents claimed to be the registered owners and users of the aforesaid registered trade mark which consists of a device in rectangular shape with words 'Dora' in English in four places and in Debanagari in one place with figure of a man and the name of their firm with blank spaces interspersed therein. The mark 'Dora' has been, according to the respondents, in extensive use on labels of cardboard boxes containing six pieces of ganjees, on neck labels, on transparent polythene bags containing ganjees and also in price tickets. The said trade mark 'Dora', it is claimed, has also been extensively advertised by the respondents and has acquired wide popularity in general public as indicating the goods bearing the said trade mark 'Dora' and/or its distinctive device as aforesaid as the exclusive property of the respondents.