PANKAJ MITHAL,J. - (1.) THE parties to this appeal are litigating over a trade mark.
(2.) THE plaintiffs are M/s. Ogal Trading Company and one of its partner engaged in the manufacturing and marketing of paint brushes under the trade name "BEKAY". The defendant no.1 M/s. Galaxy Brushware is a sole proprietorship firm and is also engaged in the business of paint brushes under the trade name "SUPER BEEKAY" whereas defendant no.2 is its proprietor. The plaintiff/respondents instituted a suit no.80/08 against the defendant/appellants for infringement of trade mark which is legally called an action for passing off. The plaintiff-respondents claimed relief of perpetual injunction restraining the defendant/appellants from using the trade name "SUPER BEEKAY" for the paint brushes manufactured by them and for rendering true and complete accounts of the sale and profit made by use of such trade name which was said to be similar and deceptive to the registered trade mark of the plaintiff/respondents.
(3.) THE suit was instituted on the allegation that the plaintiff/respondents are prior user of the trade mark "BEKAY" which is being used by them since 1998. They had applied for its registration as a trade mark on 10.8.1998 and the registration was granted vide registration certificate no.814043 on 20.1.2005 w.e.f. 10.8.1998. The defendant/appellants as such have no right to use the trade mark "SUPER BEEKAY" for their paint brushes as it is quite similar and deceptive to the registered trade mark of the plaintiff/respondents. The defendant/appellants despite notice dated 14.1.2005 did not stop using the trade mark "SUPER BEEKAY" and in order to circumvent the same they got the aforesaid trade name "SUPER BEEKAY" registered on 5.4.05.;