1962 (4) TMI 130 - HC - Indian Laws

Summary

Issues Involved:
1. Infringement of trade mark
2. Passing off
3. Interpretation of agreement between parties
4. Scope of registration under Indian Trade Marks Act
5. Protection under Section 26 of the Indian Trade Marks Act

Detailed Analysis:

1. Infringement of Trade Mark:
The appellants, Messrs Parry and Co. Ltd., claimed that the respondents' use of the trade mark "Perry's" for confectionery products infringed their registered trade mark "Parry's." The court noted that both parties used similar marks for goods in the same category, which could deceive or cause confusion among consumers. The court highlighted that the marks "Parry's" and "Perry's" closely resemble each other visually and phonetically, creating a real danger of deception or confusion if used for the same goods. The court cited several precedents, including *In re Magdalena Securities Ltd.*, *In Re Electrix Application Ltd.*, and *Corn Products Refining Co. v. Shangrila Food Products Ltd.*, to support the principle that phonetic and visual similarity between trade marks could lead to infringement.

2. Passing Off:
The appellants also argued that the respondents' use of the trade mark amounted to passing off their goods as those of the appellants. The court, however, did not delve deeply into this issue, as it found sufficient grounds to decide the case based on trade mark infringement.

3. Interpretation of Agreement Between Parties:
The court examined the agreement dated 4th May 1951 between the parties, which allowed the respondents to use the trade mark "Perry's" for biscuits but not for confectionery. The court noted that the agreement was based on the understanding that the respondents were manufacturing biscuits, not confectionery. The court rejected the respondents' contention that the agreement impliedly allowed them to use the trade mark for all goods they manufactured, including confectionery.

4. Scope of Registration Under Indian Trade Marks Act:
The court emphasized that registration of a trade mark under the Indian Trade Marks Act confers exclusive rights only in relation to the goods for which the mark is registered. The respondents had registered their trade mark "Perry's" for biscuits, not confectionery. The court clarified that the classification of goods under Rule 13 of the Trade Marks Rules and Schedule IV is primarily for administrative convenience and does not extend the protection of a trade mark to all goods within a class. The court cited *Kerly's Law of Trade Marks* and *The Upper Assam Tea Company v. Herbert and Co.* to support this interpretation.

5. Protection Under Section 26 of the Indian Trade Marks Act:
The respondents argued that their use of the trade mark "Perry's" was protected under Section 26 of the Indian Trade Marks Act, as it was a bona fide use of the name of one of their partners, Periaswami Nadar. The court rejected this contention, stating that Section 26 protects the use of the full name of an individual, not an abbreviated or expanded form. The court cited *Shorts Limited v. Short* to support this interpretation.

Conclusion:
The court concluded that the appellants were entitled to a decree restraining the respondents from using the trade mark "Perry's" for confectionery products, as it infringed the appellants' trade mark "Parry's." The court issued an injunction accordingly but allowed the respondents to use the trade mark for biscuits, including biscuits with a superficial coating of confectionery. The appeal was allowed with costs.