ASHWANI KUMAR MISHRA,J. - (1.)This appeal under Sec. 96 of the Code of Civil Procedure, 1908 is directed against judgment and decree dated 16.7.2001, passed by Additional District Judge, Court No. 8, Agra, in Original Suit No.8 of 1985 (Shri Subhash Chandra Prop. Vs. Shri Mahesh Chandra Agrawal), dismissing plaintiff's suit. Thus aggrieved, plaintiff-appellant is before this Court.
(2.)Plaintiff-appellant claims to be the proprietor of M/s Panchhi Petha Store, Bhagat Singh Gate, Noori Darwaja, Agra, and has filed Original Suit No.8 of 1985 with the averment that plaintiff carries on business of manufacturing and sale of their products under the name and style of 'Panchhi Petha Store'. Plaintiff manufactures Petha, Dalmoth, Namkin etc. of standard quality for the last 50 years at its given address, and has also a branch situated at Hari Parbat, Agra. Plaintiff has set out his pedigree to show that Panchi Lal was his father and 'Panchhi Petha Store' was started by him. This business was later on converted into a partnership, wherein partners were added or retired, from time to time. These partners were plaintiff's father, his brother and nephew etc. It is claimed that in 1981 all partners except plaintiff retired from the firm running in the name of 'Panchhi Petha Store' and ever since 1981, plaintiff is carrying on business as its sole proprietor. By way of amendment, it was added that in April, 1987 he took his father and nephew for some time as partner but they too retired in Jan., 1989, and ever since then plaintiff is running the business as the sole proprietor of 'Panchhi Petha Store'. It is also claimed that in 1971, trademark 'Panchhi Petha Store' was got registered by partnership firm consisting of plaintiff, his brother and father. The firm continued as M/S Panchhi Petha Store, and its goodwill was held by the partnership, while firm remained a partnership, and later rendering it an asset of plaintiff as its proprietor. Plaintiff, therefore, asserts that the trademark of the firm is owned by him. Its trademark registration number is given as 273943, and design of the trade name is also registered under the Copyright Act being Registration No.35048/81, and labels and containers/boxes of dalmoth, namkin, petha etc. bear marks i.e. A-6822/71 and A-20428/78, respectively.
(3.)According to plaintiff the defendant No. 1 recently started carrying business of making similar products in the name of 'New Panchhi Petha Store' and has started using labels and boxes, which are deceptively similar to the labels and boxes of plaintiff. While plaintiff uses red and blue as principal colours, as is apparent from the labels and boxes filed, upon which appears figure of a lady carrying a handbag, the defendant copied the label and added word 'New' before 'Panchhi' with same colours, but instead of lady carrying a handbag in its label, the lady carries 'umbrella and dish'. According to plaintiff, the labels and boxes are deceptively similar and got up with a view to deceive the purchaser of plaintiff's goods, which are sold through out the country. Infringement of copyright and trademark is thus alleged.