RAKESH SHARMA, J. - (1.) HEARD Sri K.N. Saxena, learned counsel for the appellant and Sri Himanshu Kane, assisted by Sri Shasi Kant Shukla, counsel for the respondent.
(2.) THROUGH this present first appeal filed under Section 96, C.P.C., the appellant Badli Ram Sharma, Proprietor A.B.S. Bidi Company, Baragon Gate, Jhansi has challenged the judgment and decree dated 21.12.82 passed by the learned Special Judge/Addl. District Judge, Jhansi in original suit No. 25 of 1979 partly decreeing and partly dismissing the suit filed by the plaintiff respondent. The pith and substance of the case is whether appellant Bidi Company can use the trade mark "501" on its label affixed on Bidi bundles, packages whereas respondent Manglore Ganesh Bidi Works, 5 Vindoha Road, Mysore 570005, Karnataka has claimed that this trade mark "501" is its registered trade mark under the Trade and Merchandise Marks Act, 1958 (briefly, the Act). The trial Court at Jhansi had decreed the suit in favour of Manglore Ganesh Bidi Works, holding that the trade mark "501" cannot be used by the present appellant, the defendant before the trial Court at Jhansi. It emerges from the record that Manglore Ganesh Bidi Works, had filed a suit No. 25 of 1979, Manglore Ganesh Bidi Works v. Sri Badli Ram Sharma, in the trial Court at Jhansi seeking permanent injunction against the defendant to restrain it, its servants, agents from infringing its registered trade marks No. 6426 and 127573 by putting it on the labels of packets, bundles of Bidis manufactured by the defendant firm at Jhansi. According to the plaintiff, his firm alone can use the trade marks labels (shown as Ext. B and B1) inter alia containing the numerals "501" and the respondent firm could not have used the numeral "501" on its label or any other numeral deceptively similar to plaintiffs registered trade mark "501". The plaintiff further sought recovery of Rs. 5,000/- as damages and direction for destruction of all Bidi bundles and packets bearing the impugned trade mark, wrappers and label including the impugned seal, wrappers and labels as per Ext. B and B-1. It is noteworthy that these labels have been placed for perusal of this Court at pages 73,74,75 and 76 of the paper book filed by the appellant.
(3.) ACCORDING to M/s Manglore Ganesh Bidi Works, it is a registered firm under the Indian Partnership Act and it carries on business of manufacture and sale of Bidis and their predecessor-in-title have also been engaged in the manufacture and sale of Bidis for over last about 76 years. According to the learned counsel for the plaintiff-respondent the firm was established in the year 1932 and since then it has been manufacturing Bidi and using the labels "501" as its registered trade mark and putting a sear on the packets of Bidis. The trade mark labels are affixed on the main wrapper and a top seal is also affixed on the wrapper bearing numeral "501". The specimen of the said seal was placed before the trial Court as Ext. A and A-1. The same has been placed on the record of this appeal. The top label 'A' inter alia has numerals "501" as its leading and distinctive feature and wrapper 'A-1' inter alia contain motif of Lord Ganesh on that numeral "501" flanked on its two sides. The plaintiff is a registered proprietor of these trade marks. According to the Act of 1958 their registration is valid and subsisting in the name of the plaintiff Manglore Ganesh Bidi Works and by virtue of its registration it has clear exclusive right of the use of the above trade mark. The definition of the mark, packages, permitted use, trade marks etc. have been given in Section 2 of the Act. When the plaintiff firm was registered in the year 1932, the Indian Merchandise Marks Act, 1989 (Act No. 4 of 1989) and Trade Marks Act, 1940 (Act No. 5 of 1940) were in vogue. The plaintiff, respondent herein have large and regular sale of Bidi bearing the said trade mark throughout the Country including the State of U.P., M.P., Rajasthan, Union territory of Delhi, Karnataka, Maharashtra etc. They have also spent a large amount of money for promoting the sale of their Bidis bearing the said trade mark labels (501 with Ganesh motif). The annual turnover of the sale of Bidis throughout India under the said trade mark label at the time of the filing of the suit in 1979 had exceeded 50 crores. At the time of the filing of the suit the sale in UP. alone exceeded Rs. 2 crore. By virtue of long standing since 1932, large and regular sales and wide publicity, the plaintiffs Bidis bearing the said trade mark labels have become popular amongst the members of trade and public at large. Since these trade marks labels have become so popular amongst the members of Bidi trade and public and are so distinct, it is demanded and sold as by referring numeral '501'. According to the learned counsel for the respondent, even an ordinary customer demands from a shop keeper to give him '501' Bidi. The Bidi bundle packets are demanded making a reference to number '501' only. In fact the trade mark '501' has been exclusively connoting and denoting the goods of the plaintiff alone and of none else.;