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TMI Blog1982 (4) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... imilar mark which was an infringement of their registered trade mark 'ESSCO' in relation to brass cocks (sanitary and bathroom fittings); (2) from manufacturing, selling, offering for sale and/or otherwise dealing in sanitary and bathroom fittings including brass cocks under the mark 'ESSO' or any other deceptively similar mark being colourable imitation of their trade mark 'ESSCO' as was likely to cause confusion and deception and from passing off these goods as those of the decree-holders in any manner whatsoever. They also prayed for an order for destruction of the goods, cartons, dies and blocks, labels and other media bearing the impugned mark 'ESSO', and for rendition of accounts etc. (3) The reliefs were claimed mainly on the allegations that in the year 1961 the decree-holders adopted the trade mark 'ESSCO' in relation to sanitary and bathroom fittings particularly brass cocks of its manufacture and sale as a distinctive trade mark. The said trade mark was duly registered under the Trade and Merchandise Marks Act. 1958. under No. 214447 and had acquired high reputation and was well-known in the market and had come to mean the produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture of other traders not being the plaintiff's as and for the goods of the plaintiff. (vii) That the above undertaking shall be binding on the Defendant No. I, its servants, agents, representatives and assigns for all time to come. (viii) That in view of the above undertaking, the plaintiff foregoes its claim for rendition of accounts as well as costs in the present proceedings. It is, Therefore, prayed that a decree in terms of paragraph 20(i) (ii) of the plaint be passed in favor of the plaintiff and against the Defendants with no order as to costs . On the same day, a decree in terms of the compromise petition which was marked as C-1, was passed by the Court. A formal decree followed the judgment. (6) On March 10, 1981, the decree-holders filed the present application under Order 21, Rule 32, read with s. 151, C.P.C., alleging that the judgment-debtors were still manufacturing, selling, offering for sale and dealing in bathroom lettings including the brass cocks under the trade mark 'OSSO' in willful disobedience of the orders and the decree of this Court and that in spite of an opportunity of obeying the decree, they had willfully tailed to obey it. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'SCO' and 'OSSO' have to be excluded from clause (iv) of the compromise deed for purposes of this judgment. (10) It is not disputed that the parties in the compromise deed prayed that a decree in terms of para 20(i) and (ii) of the plaint be passed in favor of the plaintiffs and against the defendants. Paragraphs 20(i) and (ii) of the plaint read as under : 20. The plaintiff prays : (i) for an order for permanent injunction restraining the defendants, their servants against representatives, dealers workmen and all those acting for and on their behalf from infringing the registered trade mark number 214447 by adopting and/or using the mark Esso and/or any other deceptively or confusingly similar mark which is an infringement of the plaintiff's registered trade mark Essco in relation to Brass cocks (sanitary and bath room fittings). (ii) for permanent injunction restraining the defendants, their servants, agents, representatives, dealers, workers and all those acting for and oil their behalf from manufacturing, selling offering for sale and] or otherwise dealing ii sanitary and bathroom fittings including Brass cocks under the mark Esso or any other deceptivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be confusion that is to say, not necessarily that one man will be insured and the other will gain illicit benefit, but that there will be confusion in the mind of the public which will lead to confusion in the goods then you may refuse the registration, or rather you must refuse the registration in that case. (15) It is admitted in the compromise deed C-1, that the decree-holders were the proprietors of the trade mark 'ESSCO' in respect of sanitary and bathroom fittings including brass cocks. The judgment-debtors are using the trade mark 'OSSO' in respect of the same goods. Thus, the goods in respect of which these two trade marks are being used are identical and of the same description. (16) The brass cocks are articles required by common people, who have water connections in their premises where they live either as owners or tenants or licensees. The goods are likely to be purchased by ordinary common person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from using the said trade mark. They obtained the decree restraining the judgment-debtors from using the trade mark 'ESSO' and in spite of this, the judgment-debtors conveniently adopted the trade mark 'OSSO' which is in no way different than the trade mark 'ESSO'. The fact that they started using this trade mark even before the passing of the decree is of no consequence. It, on the other hand, shows their dishonest intentions. (19) In Corn Products Refining Co. v. Shangrila Food Products Ltd., [1960]1SCR968 , the marks 'Glucovita' and 'Gluvita' were held to be deceptively similar in spite of the fact that the mark 'Gluvita' was used with reference to biscuits while the mark 'Glucovita' was used with reference to glucose with vitamins. Of course, it had been proved that the appellants trade mark 'Glucovita' had acquired reputation among the buying public. (20) In Ana Laboratories Ltd.'s Application (1952) 69 Rpc 146 (3), the dispute was between the marks 'Vanildene' and 'Vaseline'. Deciding the question, it was observed at p. 150, as under : In the next place, as regards the comparison of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s case 1965 Rpc 347, the marks under examination were 'Mem' and 'Gem'. It was held that they were not deceptively similar, observing that the word 'Gem' is well-known and easily remembered because of its laudatory significance. The world 'Mem' has no obvious meaning except possibly as suggesting something to be remembered. It was also observed that the first two letters 'M' and 'G' were letters of different sound. This does less lasting impression on the hearer's mind. I have already not apply to the first two letters 'E' and 'O' of the marks in dispute in the present case. (26) Reliance was then placed on a Division Bench decision of the Punjab High Court in Stadmed Private Ltd. v. Hind Chemicals (1965) Plr 329. The two trade marks in question therein were 'Entozine' and 'Entozyne' It was held that the two marks were not deceptively similar, but the reason, it appears, was that these goods were drugs and could only be obtained on doctor's prescription. (27) In Manyam Co. Bangalore v. Balasubramania AIR1967Mad186 , the two trade marks were 'Roji' and 'Raja'. It was he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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