EAST END HOSIERY MILLS PRIVATE LTD Vs. AGARWAL TEXTILES MILLS
HIGH COURT OF CALCUTTA
EAST END HOSIERY MILLS PRIVATE LTD.
AGARWAL TEXTILES MILLS
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(1.) This an application filed by the plaintiff inter alia for an injunction restraining the defendant from passing off Ganjies which are not of the petitioner's manufacture as and for those of the petitioner and from selling or offering for sale under the trade mark or name "SACHAMOTI" Ganjies not of the petitioner's manufacture. The application is also for an injunction restraining the defendant for displaying or causing to be displayed sign boards or posters inscribed with the mark "SACHAMOTI" in relation to Ganjies or such other mark which are colourable imitation of the petitioner's trade mark "MOTI".
(2.) The petitioner who has been carrying on business on an extensive scale as a manufacture of Hosiery goods including gangies in India has been selling Ganjies manufactured by it since 1956 under the trade mark or name "MOTI". The said mark "MOTI is embroidered in a particular style in neck labels and stitched to the neck of each Ganjies or Vest. The said label and name is used in the best quality of vests or ganjies produced by the petitioner. According to the petitioner the said mark or name as well as the said get up in the neck label as well as the packing box has acquired great popularity in the market in Calcutta, Madras, Kanpur, Delhi, etc., and has become associated with the petitioner. So much so that the sale of such ganjies rose from Rupees 97,000/- in 1960 to Rs. 8,50,000/- in 1968. The petitioner's advertisement expenses rose from Rs. 10,000/- to Rs. 16,000/- during the said period. Thus the petitioner came to acquire a property right in the said mark "MOTI". The petitioner came to know about the use by the defendant of the name "SACHA MOTI" with regard to the Ganjies manufactured by the defendant from an advertisement appearing in the "Hosiery Sandesh" during Diwali 1968.
(3.) According to the petitioner the said mark is a deceptive imitation of the petitioner the said mark is a deceptive imitation of the petitioner's aforesaid mark or name and is likely to deceive purchasers and intending purchasers into believing that the said goods bearing the label " SACHA MOTI" are the goods of the petitioner for inter alia the following reasons:-
(a) Phonetically the word " SACHA MOTI" is substantially the same as "MOTI".
(b) The get-up of the said mark as embroidered and printed on neck labels and packing box labels of the defendant's products are deceptively similar to the get-up, embroidery and printing of the said mark on neck labels and packing box labels of the petitioner.
(c) There are only very minor differences, which are insignificant between the two marks and/or get-up. The said get-up and the mark used by the defendant is a colourable imitation of the get-up and mark of the petitioner. The word "SACHA" is written above the word "MOTI" in smaller letters and is likely to escape notice. The word "MOTI" is written in bold letters and of similar design as that of the petitioner.;
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