AMRIT BANASPATI COMPANY LIMITED Vs. SURAJ INDUSTRIES LIMITED

JUDGEMENT

(1.) The plaintiffs-petitioner is a public limited Company, having its registered office at Ghaziabad, Uttar Pradesh, and a factory at Rajpura (Punjab). The petitioners are manufacturing and selling Vanaspati Oil with the trade mark "GAGAN" with a flower like device white printed on dark blue background since the year 1974 in tins, HDP containers and pouches. The defendants-respondent, according to the petitioners, have started, as per the plaintiff, with mala fide and illegal designs using the mark deceptively similar to the trade mark of the plaintiffs-petitioner and the defendants-respondent are using a flower like device and the word "ANGAN", being used by the defendant is deceptively similar to the trade name "GAGAN" of the plaintiffs. The plaintiffs-petitioner have filed Suit No. 151 of 1993 wherein the following reliefs have been prayed for :

(2.) In the aforesaid suit the plaintiffs have preferred the present application under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. It has been pleaded in the application that the plaintiffs' trade mark was registered with the Registrar of Trade Mark under the provisions of Trade and Merchandise Marks Act, 1958, under No. 301001 dated 26th November, 1974 in respect of Vanaspati Oil and the same has been renewed from time to time and the registration was still valid. It was also pleaded that the plaintiffs' trade mark was also registered with the Registrar of Copyright under the provisions of Copyright Act, under Registration No. 125/7/75, dated 10th February, 1975 and the registration of the same was still valid. According to the plaintiffs-petitioner, their trade mark by virtue of its long established usage, since the year 1974, has acquired a valuable good-will and reputation in the trade so much so that the use of any identical deceptively similar trade mark was liable to cause confusion and deception and to give an impression that the Vanaspati Oil thus sold was either those of the plaintiffs' manufacture or was, in any way, connected with the plaintiffs or their business amounting to passing off. The petitioners alleged that the monthly sale of their products was about 2000 tonnes of Vanaspati in pouches.

(3.) It has also been pleaded that the defendant-respondents, with a mala fide and illegal designs have wrongly started using the mark deceptively similar to the trade mark of the plaintiffs. The defendant-respondents were using a flower like device and the word "ANGAN", being used by the defendants is deceptively similar to the trade mark "GAGAN" of the plaintiffs. According to the plaintiffs, this was being done by the defendants in order to earn profits in an illegal manner. It has also been pleaded that the impugned mark recently adopted by the defendants is colourable imitation and was liable to cause confusion in the minds of the purchasing public, thus causing harm to the plaintiffs' trade and financial gain. It has also been averred that the pouch product, which the defendants were manufacturing, selling and offering for sale were identical with that of the plaintiffs'. According to the plaintiffs-petitioner, the Vanaspati in blue pouches was purchased by commoners, by illiterate villagers, particularly by agriculturists coming from villages, which class of purchasers was unwarry and mostly uneducated and illiterate. Purchasers were bound to be confused on account of deceptive similarity between the two marks while placing an order for purchase as both trade marks phonetically sound also the same.