Soumen Sen, J. - (1.) This is an action for infringement and passing off.
(2.) The petitioners are the manufacturer of electrical fans of various kinds. The petitioners in or about 1987 adopted the trade mark "TOOFAN". The said trade mark "TOOFAN" is written in a stylish manner with a gap at the top of the two "o's" in the word and the letter "F" written in capital in a rectangular box with the sides curved and the word "TOOFAN" forming only the distinctive and/or the prominent feature in the said mark taken as a whole. The said trade mark is represented as [1] and its stylized representations both have become distinctive of the goods of the petitioners and no one else. The word "TOOFAN" is printed on the products, packaging materials, brochures, warranty cards, bills and invoices of the petitioners. The said goods manufactured by the petitioners are distributed and/or sold extensively in various States including the State of West Bengal, Bihar, Orissa, Assam, Tamil Nadu, Andhra Pradesh, Uttar Pradesh, Madhya Pradesh, and Gujarat through an established network of dealers and distributors. The petitioners have claimed superior quality of the said goods and have disclosed its turnover since 1987-1988 till 2017-2018. The turnover is quite substantial. The petitioners claimed that the petitioners are prior adopters and users of the trade mark "TOOFAN" and have been using the said trade mark "TOOFAN" continuously and uninterruptedly. The petitioners claimed that by reason of such prior bona fide adoption coupled with long continuous use and wide publicity thereof, the petitioners have become the exclusive proprietor of the said trade mark "TOOFAN". The purchasing public and the members of the trade easily identify and distinguish the goods sold under the mark "TOOFAN" to have been originated from or connected with the business of the petitioners only and none else. The petitioners have also disclosed the expenditure entered by the petitioners since 1998-1999 till 2016-2017 towards advertisement and publicity. The expenditures are also quite substantial. In order to prevent any unauthorized use of the said mark "TOOFAN" and in order to make people aware of the mark "TOOFAN" for the said goods exclusively belonging to the petitioners and none else, the petitioners published Caution Notices in various newspapers from time to time. The petitioners in this proceeding have disclosed few of such notices and advertisements.
(3.) In order to obtain statutory protection over the said trade mark "TOOFAN" on or about August 26, 1993, the petitioners filed an application being No.605175 in class 11 under the Trade & Merchandise Marks Act, 1958 (in short "TMM Act", 1958) before the Trade Marks Registry, which was registered in their favour on 9th April, 2012.;