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TMI Blog1984 (1) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... suit of the plaintiff is in respect of issue of four types of perpetual injunction. The first is for restraining the defendant from manufacturing, selling or otherwise dealing in stoves under the trade mark 'PERFECT' and 'SWASTIK PERFECT' and any other trade mark identical or deceptively similar to the aforesaid trade-mark. The second injunction is in respect of using of the cartons, which contains the stoves, having the name 'PERFECT' and 'SWASTIK PERFECT'. The third injunction is in respect of using the stoves having the same or similar type of registered design as that of the plaintiff. The fourth injunction is in respect of 'passing off' of the stoves of the defendant as those of the plaintiff. The plaintiff also prays for rendition of accounts of profits earned by the defendants on the soles of stoves under the infringing design, trade mark and carton entitled 'PERFECT'. The last prayer of the plaintiff is for delivery of all the offending, counterfeiting labels, cartons, wrappers, dies, blocks and finished and unfinished stoves bearing the impugned design. 2. The plaintiff is a partnership firm who is carrying on business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturing and selling the stoves under the trade-mark TRISHUL PERFECT and VIJAY PERFECT. They admitted that they were stocking and selling the stoves manufactured by the plaintiffs upto the year 1981 and that they give up the said business in the said year. 7. They dined that they are having the same colour scheme, get-up and design of the cartons. According to them, their cartons are of violet color having different colour scheme, get-up and design and were being manufactured by M/s. Vijay International Products, Malka Ganj, Delhi, who had got copyright for the said cartons registered under copyright No. A-40188/83. They also deny that the stoves which they manufacturing and selling had the same design as the ones manufactured by the plaintiffs. 8. I heard the counsel for the parties at length. It is clear from the above that the rights claimed by the plaintiffs are on the basis of the trade mark 'PERFECT' and 'SWASTIK PERFECT' design of the stove and copyrights of the cartons which contain the stoves. All these three aspects are being dealt with separately. 9. First of all I take up with respect to the alleged right of use of the trade mark. Section 9(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviso to section 17 of the Trade and Merchandise Marks Act, 1958 (which has already been mentioned deals with subject of disclaimer) is very important and the said proviso reads as under: Proved that no disclaimer shall affect any rights of the proprietor of a trade mark except such as arise out of the registration of the trade mark in respect of which the disclaimer is made. 11. The right against 'passing off' does not arise out of registration of a trade mark and is independent. This is clear from section 27 of the Trade and Merchandise Marks Act which reads as under: 27. (1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. (2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. 12. In The Registrar of Trade Marks vs. Ashok Chandra Rakhit Ltd., (1955) 2 SCR 252, in that case a trade-mark containing the word 'Shree' was first registered and there-after the registered owner was required to disclaim the word 'Shree'. Following obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely stated that the plaintiffs are not the owners of the trade-mark 'PERFECT' as alleged. At the time of arguments, this fact was not controverted. It is further common ground between the parties that the defendant was stockiest and selling agent of the stoves manufactured by the plaintiffs and that the same continued upto 1981. There is further no dispute that it was in the year 1981 that the defendant started manufacturing his own stoves under the trade-mark 'TRISHUL PERFECT' and 'VIJAY PERFECT'. It is, therefore, clear that the user of the trade-mark 'PERFET' by the plaintiff is much earlier than the user of the same by the defendant. It is also obvious that the defendant being stockiest and seller of the products of plaintiff can easily pass off his own product as those of the plaintiffs because of the same-trade-mark 'PERFECT'. Therefore, it is necessary to stop the said passing off and deceit. 15. The balance of convenience clearly favours the plaintiffs. The suit may take lot of time for being disposed of. In the meantime the defendant will go on selling stoves manufactured by him which is bound to finish the market to the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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