- (1.) S. R. Singh, J. This appeal has its advent to this Court from the judg ment and decree dated 9-12-1993, rendered by 4th Additional District Judge, Kanpur Dehat in a passing-off action being original Suit No. 4 of 1987 instituted by plaintiff-respondent, Shree Gopal Engineering and Chemical Works, 91 Government Industrial Estate, Kanpur under Sections 105 and 106 under the Trade Merchandise Marks Act, 1958 (In short 'the Act'), The relief sought was for permanent as well as mandatory injunction and also for rendi tion of accounts etc.
(2.) THE synoptical resumption of the case, which has given rise to the present appeal may be briefly stated and it is that the plaintiff, a partnership farm is engaged in the business of manufacturing Phenyle Nepthalene balls and cotton bandages under Drug Licence No. 27 of 1965 and has been using trade name 'doctor Brand' with bust portrait of Jugal Bihari Gupta, one of the partners of the Firm. It is beyond the pale of controversy that the plaintiff has been using the said Trade Mark and Trade Name since the year, 1963 on its drugs. The suit was instituted with the allegations that the venture of the plaintiff firm was diffused one and goods had circulation in major parts of the country including the States of Uttar Pradesh, Madhya Pradesh, Bihar, West Bengal, Himachal Pradesh, Punjab, Haryana and Delhi. It was also alleged in the plaint that the plaintiff had given wide publicity of its goods in the Newspapers, conspicuously at play- Boards, Calendars, Walls Painting, Cinema Slides etc. and further that it maintained a strict quality control over its goods and commanded reputation on Trade Name/trade Mark aforesaid. The defendant appellant's business is neoterical, inasmuch as they started manufacturing pharmaceutical disinfectant etc. and adopted the name of 'doctor Brand' owing to popularity of the same and began to pass off the goods of inferior quality under the said Trade name 'doctor Brand', which the plaintiff had been harnessing on use since 1963. It was alleged that the defen dant also embarked upon manufacturing Phenyle Nepthalene balls under the Trade Mark 'doctor Brand' label with bust portrait similar to that of the plaintiff. This, according to the plaintiff, spawned confusion in the mind of the public and amounted to deception in the matter of passing-off the goods manufactured by the defendant which were inferior in quality to the goods produced by the plaintiffs. The plaintiff accordingly, prayed that by means of a decree of permanent injunction, the defendant, their agents, dealers etc. be refrained from manufacturing, selling, advertising their goods under the Trade-mark 'doctor Brand' and by a decree of mandatory injunction, they as restrained from passing off the goods under the aforesaid Trade-mark. The defendant appellant filed a written statement and contested suit with the allegations inter alia that it had been using an imaginary name 'doctor Brand' and Liquooplin' dipicted in a black rectangular design on their drugs since 1977 and the sale of their goods was being made in the States of Maharashtra, Gujarat, Madhya Pradesh, Karnataka, Goa and Delhi. It would be worth while to set out here that Trade-mark 'doctor Brand' is conspicuous by its not being registered as yet either in the name of the plaintiff or in the name of the defendant. The application for registration moved on behalf of the plaintiff-respondent has, no doubt, been allowed and the objection by the appellant rejected by Deputy Registrar of Trade-marks, New Delhi vide order dated 17-9-1992, but the operation of the said order has been stayed by the appellate court vide order dated 11-12-1992 and the stay order is still operating with the result that the registration of the Trade-mark in question stands deferred.
(3.) ON the pleading of the parties, the following issues stemmed and were formulated. (i) Whether the defendants have no right to manufacture and sell Pharmaceuticals, medicines preparations, disinfectants, such as phenyle and nepthalene balls etc. under the brand of Trade mark 'doctor Brand' and stated in para 9 of the plaint? (ii) Whether the court has no jurisdiction to try the suit? (iii) Whether the defendants are illegally passing off their goods as those of the plaintiff under the Trade-mark 'doctor Brand'? (iv) Whether the plaintiff is entitled to injunctions and damages? If yes, its amount? (v) Whether the suit is barred by limitation? (vi) To what relief? (vii) What if effect of advertisement of defendant's Trade marks under Section 20 (1) of the Trade and Merchandise marks as alleged in para 22 (a) of W. S. ? The learned trial court decreed the suit and perpetually restrained the defendant-appellant, its agents, dealers, stockists from manufacturing selling advertising directly or indirectly under the Trade mark 'doctor Brand' and further restrained them, by means of a mandatory injunction from passing off their goods and selling the same throughout the country under the label and name of 'doctor Brand' Trade-mark. The suit for rendition of accounts was however, dismissed but damages to the tune of Rs. 2000 were awarded by the learned trial court. Aggrieved, the defendant-appellant has preferred the instant appeal.;