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PETITIONER: MANMOHAN GARG

       Vs.

RESPONDENT: M/S RADHA KRISHNA NARAYAN DAS THROUGH ITS PARTNERS

DATE OF JUDGMENT:       19/02/1998

BENCH: A.S. ANAND, B.N. KIRPAL, S. RAJENDRA BABU

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The respondent  filed a  Civil Suit in the Court of the District  Judge,   Bhopal  seeking   relief   of   permanent injunction  and   damages  on   the  allegations   that  the appellant/defendant was  using a  deceptively similar  label and passing  off the  Bidis manufactured by him as the Bidis manufactured by the plaintiff. The plaintiff claimed damages besides permanent  injunction and  an order  to restrain the defendant/appellant  to   sell  the  Bidis  with  the  label Khargosh Chhap.   A decree for accounts was also prayed for. The trial  court dismissed the suit on 16th March, 1981. The first appeal  filed by  the respondent  against the judgment and decree  dated 16th  March,  1981  succeeded  before  the learned Single  Judge of  the High  Court on  19th February, 1991. The  learned Single  Judge held that the plaintiff had established infringement  of his  registered trade  mark  no 112689 by  the defendant  by reason  of deceptive similarity between the  mark used  by the defendant and the plaintiff’s registered trade  mark. Against  the order  of  the  learned Single Judge,  the appellant  herein filed  a Letters Patent Appeal. A  Division Bench  of the  High Court  dismissed the Letters Patent  Appeal on  20th December,  1985. Hence  this appeal by special leave.      Briefly stated, the facts are :-      Trade  Mark   of  Bidis,   Khargosh  Chhap,  was  first registered with the Sub-Registrar of Bombay on 26th January, 1928 and  thereafter it was registered under the Trade Marks Act,  1940   on  14th   August,  1945   in  favour   of  the plaintiff/respondent in  respect of  the Bidis  to  be  sold under that  Trade Mark  throughout the  territories of India except Madras  and Mysore.  The Trade  Mark  was  registered under Registration no 112689. It appears that the plaintiff- respondent subsequently  registered the Jhilli (tissue paper wrapper) on  2nd July,  1954 under  registration no. 164797. According  to   the  plaintiff/respondent,  looking  to  the popularity, reputation  and sale of the plaintiff’s Khargosh Chhap Bidis,  the defendant/appellant  started selling Bidis using a  label which  was deceptively  similar to  and was a colourable  imitation  of  the  plaintiff’s  Khargosh  Chhap Bidies, both  in respect  of the  design, layout, get up and

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the colour  scheme.   It was  on these  allegations that the plaintiff/respondent had  filed the  suit seeking  relief of permanent injunction and damages etc.      The learned  Single Judge as well as the Division Bench of the  High Court,  on the  basis of  the evidence  on  the record,  have   recorded  categorical   findings  that   the appellant’s labels  used on  the Bidis manufactured and sold by  him  were  deceptively  similar  and  identical  to  the plaintiff-respondent’s label on the Bidis bearing trade mark Khargosh Chhap.  It has  also been  found by  the High Court that the trade mark Khargosh Chhap had been registered prior in point  of time  than the  trade  mark  Goat  Cub  of  the appellant.      From the  material on  the record,  we  find  that  the appellant had  filed an  affidavit  on  30th  January,  1964 (Ext.P/16) wherein  he had deposed that the trade mark "Goat Cub" was  conceived by  his firm in 1952 and that he started selling his  Bidies under  that trade  name. The appellant’s documents Ext.p/16  and P/17 also unmistakably show that the trade mark  Goat Cub  was conceived  and put into use by him since 1952  only. That documentary evidence of the appellant gives a  complete lie  to the stand of the appellant that he was using the trade mark Goat Cub since 1936. That being the findings recorded  by  the  learned  Single  Judge  and  the Division Bench  of the  High Court  to the  effect that  the plaintiff/respondent’s trade mark was registered in 1945 and the defendant’s  claim of  prior user of the label with Goat Cub was  incorrect. In  the light  of this factual aspect of the case,  we find and the Division Bench committed no error and their  judgments suffer  from no  flaw whatsoever.  This appeal, thus,  has no  merits. it  is consequently dismissed with costs.