LAXMI GUDAKHU FACTORY Vs. AVINASH GUDAKHU FACTORY
LAWS(MPH)-2000-5-34
HIGH COURT OF MADHYA PRADESH
Decided on
May 12,2000
LAXMI GUDAKHU FACTORY
Appellant
VERSUS
AVINASH GUDAKHU FACTORY
Respondents
Referred Judgements :-
WANDER LTD V. ANTOX INDIA P.LIMITED [REFERRED TO]KAVIRAJ PANDIT DURGA DUTT SHARMA IN BOTH THE APPEALS VS. NAVARATNA PHARMACEUTICAL LABORATORIES IN BOTH THE APPEALS [RELIED ON]
PARLE PRODUCTS PRIVATE LIMITED VS. J P AND CO MYSORE [RELIED ON]
JOHNSON AND JOHNSON VS. CHRISTINE HODEN INDIA PRIVATE LIMITED [DISTINGUSISHED (DISTING)21]
COX DISTILLERY VS. MCDOWELL AND COMPANY LIMITED [RELIED ON]
JUDGEMENT
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(1.)This miscellaneous appeal is directed against the order dated 14th December, 1999 in Civil Suit No. 32-A/1999 by District Judge, Raigarh, whereby the plaintiff/appellant's application under Order 39 Rules 1 and 2 r/w. Section 151 of the C.P.C., marked as I.A. No. 1, was dismissed.
(2.)Undisputably, the plaintiff/appellant is a manufacturer of 'Gudakhu', which is being used as toothpaste. It carries on business in the name and style of 'Laxmi Gudakhu Factory' and sells its product under the registered trade-mark 'Saraswati Chhap Gudakhu'. The label of the said product is at the top of 'Annexure-C', which is marked as "1" for the purpose of convenience. The above trade-mark was registered with the Registrar of Trade Mark under the Trade and Merchandise Marks Act, 1958 (hereinafter called the 'Act' for short) on 17-4-1967. It is also not in dispute that the registration as above has been renewed by the plaintiff/appellant, from time to time, and is still in force. Subsequently, the plaintiff/appellant received information in September, 1999 that the defendant/respondent No. 1 is also selling its product under the trade name 'Ma Saraswati Chhap Gudakhu'. The label used by the defendant/respondent No. 1 is at Sl. No. 2 of 'Annexure-C'. It also appears that subsequently on the protest being raised by the plaintiff/appellant regarding the use of label, as per Sl. No. 2 at 'Annexure-C', the defendant/respondent No. 1 changed the trade name as 'Ma Saraswati Chhap Gudakhu', the label thereof is at Sl. No. 3 of 'Annexure-C'.
(3.)The plaintiff/appellant filed a suit, copy of plaint is 'Annexure-E', alleging that the trade name and label used by the defendant/respondent No. 1 are deceptively similar to the trade name and label used by the plaintiff/appellant. Therefore, the plaintiff/appellant prayed that the defendant/respondent No. 1 be restrained from using the above trade-name and label for selling its product and token compensation of Rs. 5,000/- be granted to the plaintiff. An application for grant of temporary injunction under Order 39 Rules 1 and 2 r/w. Section 151 of the C.P.C. (Annexure-F) was also filed.
(2.)Undisputably, the plaintiff/appellant is a manufacturer of 'Gudakhu', which is being used as toothpaste. It carries on business in the name and style of 'Laxmi Gudakhu Factory' and sells its product under the registered trade-mark 'Saraswati Chhap Gudakhu'. The label of the said product is at the top of 'Annexure-C', which is marked as "1" for the purpose of convenience. The above trade-mark was registered with the Registrar of Trade Mark under the Trade and Merchandise Marks Act, 1958 (hereinafter called the 'Act' for short) on 17-4-1967. It is also not in dispute that the registration as above has been renewed by the plaintiff/appellant, from time to time, and is still in force. Subsequently, the plaintiff/appellant received information in September, 1999 that the defendant/respondent No. 1 is also selling its product under the trade name 'Ma Saraswati Chhap Gudakhu'. The label used by the defendant/respondent No. 1 is at Sl. No. 2 of 'Annexure-C'. It also appears that subsequently on the protest being raised by the plaintiff/appellant regarding the use of label, as per Sl. No. 2 at 'Annexure-C', the defendant/respondent No. 1 changed the trade name as 'Ma Saraswati Chhap Gudakhu', the label thereof is at Sl. No. 3 of 'Annexure-C'.
(3.)The plaintiff/appellant filed a suit, copy of plaint is 'Annexure-E', alleging that the trade name and label used by the defendant/respondent No. 1 are deceptively similar to the trade name and label used by the plaintiff/appellant. Therefore, the plaintiff/appellant prayed that the defendant/respondent No. 1 be restrained from using the above trade-name and label for selling its product and token compensation of Rs. 5,000/- be granted to the plaintiff. An application for grant of temporary injunction under Order 39 Rules 1 and 2 r/w. Section 151 of the C.P.C. (Annexure-F) was also filed.
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