LACHMAN DAS BEHARI LAL Vs. GHANSHYAM DAS JETHA NAND
HIGH COURT OF DELHI
LACHHMAN DAS BEHARI LAL
GHANSHYAM DAS JETHA NAND
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Badar Durrez Ahmed, J. -
(1.) The plaintiff has filed this suit for permanent injunction,
infringement of copyright/trademark, passing off and rendition of accounts
etc. The defendants have been proceeded ex parte. The plaintiff has filed its
evidence in the shape of affidavits of PW1 to PW12. The plaintiff has also
filed documents which have been marked as exhibits PW 1/1 to PW 1/13. The
document at page 51 filed on behalf of the plaintiff as Annexure - VIII
contains the plaintiffs mark as well as the defendants' mark. The plaintiffs
mark is marked as exhibit-A. The defendants' mark is marked as exhibit-B.
The document at page 52 (Annexure - IX) which is a bill issued by the
defendant No. 3 is marked as exhibit-C.
(2.) The plaintiff is a registered partnership firm which was constituted
in 1925. Later, in 1981, due to expansion of the business, the plaintiff moved
a part of its business activities as well as its head office to Delhi. The plaintiff
firm is in the business of manufacturing and selling snuff through its
licencees. Shri Manohar Lal Wadhwa (PW-1) is one of the partners in the
firm and he has given his affidavit by way of evidence. The affidavit filed by
PW1 reiterates and substantiates the contents of the plaint. Exhibit PW 1/1
is a certified copy of the registration of the firm. Exhibit PW 1/2 is a certified
copy of the trademark registration of the mark SWAMI. The registration
number is 301792. It is registered in Class 34 and is effective from
28.12.1974 for the sale of snuff in the States of Punjab, Rajasthan, Madhya
Pradesh, Uttar Pradesh, Maharashtra, West Bengal, Haryana, Andhra
Pradesh, Orissa, Assam, Sikkim, Bhutan and Nagaland. A certified copy of
the copyright registration in respect of the plaintiffs SWAMI Label has also
been filed and the same is exhibited as exhibit PW 1/3. The label of the plaintiff
is indicated in Exhibit-A and that of the defendant Nos 1 and 2 is indicated in
Exhibit B. The defendant No. 3 is the person through whom the goods of
defendant Nos 1 and 2 are sold. Since the defendants have chosen not to appear,
the evidence filed on behalf of the plaintiff has gone uncontroverted.
(3.) The main question that needs to be examined in the present case is
whether the defendants' mark (Exhibit B) is deceptively similar to the
plaintiffs mark (Exhibit A). The defendant Nos 1 and 2 were earlier
manufacturing and selling their products under the mark SWAMI.
However, subsequently they have changed it to SNUFF. A look at the two
exhibits - Exhibit A and Exhibit B would clearly indicate that Exhibit B is
deceptively similar to Exhibit A. If the two exhibits are looked at separately
and not side by side then the similarity and deceptiveness become even
stronger. Accordingly, I hold that the defendants' label which is represented
in Exhibit B is deceptively similar to the plaintiffs label which is represented
in Exhibit A. It may also be noted that the colour scheme 1 that has been
employed by the defendants is virtually identical to the colour scheme
employed by the plaintiff. Taking into account the class of purchasers who
purchase snuff would also aggravate the situation further inasmuch as they
would not be so discerning as to the mark the minute differences which have
been introduced by the defendants in their label. An examination of the
entire case reveals that the defendants have copied the label of the plaintiff
entirely and have cleverly sought to introduce minor differences which would
not be noticed by the class of purchasers who normally purchase such goods.
Accordingly, in my view the plaintiff is entitled to a decree of injunction.;
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