K R JADAYAPPA MUDALIAR Vs. K S VENKATACHALAM

JUDGEMENT

(1.) THE defendants in O.S. No. 16 of 1987 on the file of the District Judge, North Arcot at Vellore have preferred this Civil Miscellaneous Appeal against the order made in I. A. No. 295 of 1987 restraining them by an injunction from manufacturing and selling matches using the impugned trade mark devices "Standing Stag" and "Standing Deer" shown in Schedules B and C to the application and passing off the goods manufactured by them under the above said trade marks till the disposal of the suit.

(2.) THE first respondent herein is the proprietor of the second respondent concern. THE respondents filed the suit referred to above for permanent injunction restraining the appellants from in any manner infringing their trade mark "National Park" together with the device of a 'Standing Stag' and the colour scheme and get up by using the offending 'RUNNING DEER' together with the device of "Standing Stag" and identical colour scheme and get up or any other mark or marks which are in any way deceptively similar to or a colourable imitation of their trade mark and for an injunction restraining the appellant from in any manner passing off their safety matches for the safety matches of the plaintiffs by using the offending trade mark 'RUNNING DEER' or any other mark and for other consequential reliefs. In the plaint it was stated by the respondents that they have been since 13-8-1955 using in connection with safety matches manufactured by them a distinctive trade mark 'NATIONAL PARK' with the device of 'Standing Stag' with a peculiar colour scheme and get up with a view to indicate that such goods are of their manufacture. It was also stated that the plaintiffs had done and were still doing extensive business under the aforesaid trade mark and by reason of long, extensive and continuous user, the aforesaid mark had become distinctive of the goods of the plaintiffs only. According to the plaint, the mark was registered under the Trade and Merchandise Marks Act, 1958 under No. 170403 in Class 34 and was being renewed from time to time. A photo copy of the Registration Certificate granted to the plaintiffs was filed along with the plaint. It was claimed by the plaintiffs that they had spent considerable amounts and efforts for promoting the sales of their safety matches under the aforesaid trade mark and had acquired valuable goodwill for the said trade mark because of the excellent quality and high standard as well as the sales promotion efforts put in by the plaintiffs. It was stated that the plaintiffs had done business under the aforesaid mark to the tune of several lakhs and were still doing extensive business. According to the plaint, the plaintiffs had placed orders with the third defendant for manufacture and supply of safety matches without any right in the trade mark of the plaintiffs and accordingly, the third defendant was supplying safety matches to the plaintiffs for some time and as he was not maintaining the quality and standard, the plaintiffs were obliged to stop procuring safety matches from the third defendant. A reference was made to a letter dated 30-9-1985 given by defendants 3 and 4 to the plaintiffs to evidence that the plaintiffs permitted them to manufacture and supply safety matches without any right over the trade mark. A Xerox copy of the said letter was produced along with the plaint. THE plaintiffs claim to have informed the Central Excise Department of the Government of India about the withdrawal of the agreement between the plaintiffs and defendants 3 and 4 by their letter dated 12-3-1986. Reference was made to a letter sent by the Superintendent of Central Excise Department, Government of India, Range No. 2, Gudiyatham, dated 14-3-1986 to the defendants not to manufacture any further safety matches, a copy of which was sent to the plaintiffs. A Xerox copy of the same was produced along with the plaint. It was, therefore, stated in the plaint that after the withdrawal of the permission given by the plaintiffs, the defendants had no right to manufacture safety matches and supply to the plaintiffs.

(3.) ALONG with the plaint, the plaintiffs filed I. A. No. 295 of 1987 for a temporary injunction till the disposal of the suit. The averments found in the affidavit filed in support of the application for injunction were on the same lines as those found in the plaint but in a shortened form. However, it has to be mentioned that there was no averment in the affidavit with regard to the passing off the goods of the defendants as those of the plaintiffs excepting in the prayer paragraph.