- (1.) THE plaintiff-respondent No. 1 Instituted a suit, suit No. 50 of 1954, in the court of the Civil judge, Bareilly, against the appellant and several other persons for the issue of a permanent injunction restraining the defendants, their servants and others on their behalf from manufacturing, selling or offering for sale or from passing off or attempting to pass off match boxes not of the plaintiff's manufacture as those of the plaintiff's manufacture by the use of the offending labels, Annexures B-1 and B-2, or any other label of a similar design and appearance as that of the plaintiff- It was further prayed in the suit that the defendants be ordered to deliver up to the plaintiff the entire stock of the offending labels and boxes of matches bearing the offending label under their control and also all loose labels, blocks, wrappers, etc. , in their possession. It was further prayed that the defendants be ordered to render an account of the profits made by them by sale of their match boxes by passing them off as the plaintiff's goods under the aforesaid offending label and a decree of the amount of profits so found be passed against them by way of damages.
(2.) THE plaintiff-company carries on business of manufacturing and selling match boxes. The match boxes manufactured by the plaintiff are packed in boxes and cases each of which bears a label known as "tekka" and a specimen of which attached to the plaint is marked Annexure A. This label is said to be commonly and popularly known by the purchasing community as 'tash', 'cards' 'ekka' brand marks. It is alleged that the people in general consider the goods bearing that label to be goods manufactured by the plaintiff and that the plaintiff has thus acquired an exclusive right and title to their trade marks which are also registered. In this connection it is also mentioned in the plaint that the aforesaid label stands as a symbol for the goods manufactured by the plaintiff.
(3.) THE defendant. No. 3, the appellant, is said to be the owner of another label attached to the plaint and marked as Annexures B-1 and B-2. The other defendants 4 to 13 are dealers in match boxes in various places in India. Defendants 1 and 2 manufacture match boxes and matches on behalf of defendant 3. They manufacture their matches under labels marked Annexures B-1 and b-2. It is alleged by the plaintiff in the plaint that they do so with a view to pass off such goods as the goods manufactured by the plaintiff and that they were actually passing their own manufactured goods, as the goods manufactured by the plaintiff. Annexures B-1 and B-2 are said to be colourable imitation of the plaintiff's Annexure A and are calculated to mislead purchasers into the belief that in purchasing the defendants' match boxes they were purchasing the match boxes manufactured by the plaintiff. The further allegations in the plaint are that the defendants adopted this label, Annexures B-1 and B-2, with fraudulent intention and that the similarity between the two labels namely those mentioned in Annexure A and Annexures B-1 and B-2 and the name 'cards' adopted by the defendants were calculated to deceive persons, whether illiterate villagers or literate persons into the belief that while purchasing the defendant's match boxes they were really purchasing those manufactured by the plaintiff and sold as 'tekka' of "ekka" marks and that owing to the introduction of the offending labels considerable confusion had already been created in the market.;