Manmohan
Garg Vs. M/S Radha Krishna Narayan Das [1998] INSC 109 (19 February 1998)
A.S.
Anand, B.N. Kirpal, S. Rajendra Babu
ACT:
HEAD NOTE:
O R D
E R
The
respondent filed a Civil Suit in the Court of the District Judge, Bhopal
seeking relief of permanent injunction and damages on the allegations that the
appellant/defendant was using a deceptively similar label and passing off the Bidis
manufactured by him as the Bidis manufactured by the plaintiff. The plaintiff
claimed damages besides permanent injunction and an order to restrain the
defendant/appellant to sell the Bidis with the label Khargosh Chhap. A decree
for accounts was also prayed for.
The
trial court dismissed the suit on 16th March, 1981. The first appeal filed by the
respondent against the judgment and decree dated 16th March, 1981 succeeded before the learned Single Judge of the High Court
on 19th February, 1991. The learned Single Judge held that
the plaintiff had established infringement of his registered trade mark no
112689 by the defendant by reason of deceptive similarity between the mark used
by the defendant and the plaintiff's registered trade mark. Against the order
of the learned Single Judge, the appellant herein filed a Letters Patent
Appeal. A Division Bench of the High Court dismissed the Letters Patent Appeal
on 20th December, 1985. Hence this appeal by special leave.
Briefly
stated, the facts are :- Trade Mark of Bidis, Khargosh Chhap, was first
registered with the Sub-Registrar of Bombay on 26th January, 1928 and
thereafter it was registered under the Trade Marks Act, 1940 on 14th August,
1945 in favour of the plaintiff/respondent in respect of the Bidis to be sold
under that Trade Mark throughout the territories of India except Madras and Mysore.
The Trade Mark was registered under Registration no 112689. It appears that the
plaintiff- respondent subsequently registered the Jhilli (tissue paper wrapper)
on 2nd July, 1954 under registration no. 164797.
According
to the plaintiff/respondent, looking to the popularity, reputation and sale of
the plaintiff's Khargosh Chhap Bidis, the defendant/appellant started selling Bidis
using a label which was deceptively similar to and was a colourable imitation
of the plaintiff's Khargosh Chhap Bidies, both in respect of the design,
layout, get up and the colour scheme. It was on these allegations that the
plaintiff/respondent had filed the suit seeking relief of permanent injunction
and damages etc.
The
learned Single Judge as well as the Division Bench of the High Court, on the
basis of the evidence on the record, have recorded categorical findings that
the appellant's labels used on the Bidis manufactured and sold by him were
deceptively similar and identical to the plaintiff-respondent's label on the Bidis
bearing trade mark Khargosh Chhap. It has also been found by the High Court
that the trade mark Khargosh Chhap had been registered prior in point of time
than the trade mark Goat Cub of the appellant.
From
the material on the record, we find that the appellant had filed an affidavit
on 30th January, 1964 (Ext.P/16) wherein he had deposed
that the trade mark "Goat Cub" was conceived by his firm in 1952 and
that he started selling his Bidies under that trade name. The appellant's
documents Ext.p/16 and P/17 also unmistakably show that the trade mark Goat Cub
was conceived and put into use by him since 1952 only. That documentary
evidence of the appellant gives a complete lie to the stand of the appellant
that he was using the trade mark Goat Cub since 1936. That being the findings
recorded by the learned Single Judge and the Division Bench of the High Court
to the effect that the plaintiff/respondent's trade mark was registered in 1945
and the defendant's claim of prior user of the label with Goat Cub was
incorrect. In the light of this factual aspect of the case, we find and the
Division Bench committed no error and their judgments suffer from no flaw
whatsoever. This appeal, thus, has no merits. it is consequently dismissed with
costs.
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