Full Judgment Text
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PETITIONER:
MANMOHAN GARG
Vs.
RESPONDENT:
M/S RADHA KRISHNA NARAYAN DAS THROUGH ITS PARTNERS
DATE OF JUDGMENT: 19/02/1998
BENCH:
A.S. ANAND, B.N. KIRPAL, S. RAJENDRA BABU
ACT:
HEADNOTE:
JUDGMENT:
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
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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.