- (1.) The plaintiff is the owner of the registered trade marks 'Odonil', 'Odopic', 'Odomos' both label and word under the common classes- 5,3, 9,11, 21, and it has also applied for further registration between the years 1985 and 2001, for the word 'Odo'. This action has been taken against infringement and passing of by the defendant who uses the name and mark 'Odoja' in their products which are under same class. With the word 'Odo' the plaintiff claims that the aforesaid registrations were effected at different point of time ranging from 24th August, 1962 to 26th February, 1990. Admittedly the defendant's mark is not a registered one and it has merely applied for registration of its mark on or about 27th of March, 2000. The plaintiff claims that it was the first in using of the word 'Odo' in its trademarks for commercial purpose.
(2.) The defendant in his affidavit in opposition has taken defence that the word 'Odo' is a generic term and used by all the traders as such it has become common to the trade. The mark used by the defendant has been made known to the public for a long time and in fact the plaintiff has also noticed the same. The plaintiff cannot claim any monopoly over the word 'Odo'. The application for registration of the plaintiff of the word 'Odo' is still pending.
(3.) Mr. Chakraborty, senior advocate, appearing for the plaintiff submits, under the provision of the Trade and Merchandise Mark Act, 1958 his client is entitled to get protection against the aforesaid infringement done by the defendant using the prefix of the aforesaid registered marks. The adoption of the mark 'Odoja' by the defendant is motivated and is calculated to deceive the consumer in respect of the same product, as the product of the plaintiff.;