Mushtaq Ahmad, J. - (1.) This is a defendants" appeal in a suit relating to an alleged infringement of trade-mark. The plaintiff is the proprietor of a manufacturing firm called the Indian Drug House, Allahabad, while the defendants are a firm in Bombay manufacturing and dealing with various classes of medicine. The plaintiff in 1930 put on the market a certain, medicine considered to be a nervine tonic which he labelled with the words "Tonic Phosphotone" while the defendants about six years later brought out another medicine which they advertised under the title of "Cipla Phosphoton". Since this year the two medicines, as found by the trial Court, had been in the market and enjoyed each a certain degree of popularity.
(2.) It is necessary to visualise the precise basis on which the plaintiff sought his relief which was for a permanent injunction restraining the defendants, his servants and agents from manufacturing and offering for sale, etc., anywhere in the country any stuff with the mark and design-"Phosphotone" or in any other name, design or get-up, as amounting to a colourable imitation of the name and design of the plaintiff's medicine. The plaintiff also claimed a mandatory injunction directing the defendants to deliver to him all stocks in their possession of their "Phosphoton" together with the packing, signboards, labels, labelled bottles and literature, as well as the blocks or dies used in printing the same. A third relief for accounts, or, in the alternative for Rs. 1,500 as damages was also claimed. As I have said, it is essential to ascertain the exact basis, as alleged in the plaint, of these reliefs.
(3.) The plaintiff's case was that he had on 20th March 1930, got the name "Tonic Phosphotone" registered with the Registrar of Assurance, Calcutta, who was the proper authority for that purpose, that this mark was indicative of the medicine he had produced and that the defendants by putting on the market another medicine under the name of "Phosphoton", which was only an imitation of the plaintiff's "Phosphotone", were guilty of an infringement of the plaintiff's exclusive right and monopoly of using the latter name. It is true that in his relief in the plaint, the plaintiff had used the words "passing off", while claiming an injunction against the defendants and' praying that the latter should be prevented from doing so in the circumstances mentioned in the plaint.;