9911796707
TMI Blog1970 (8) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... name is used in the best quality of vests or ganjies produced by the petitioner. According to the petitioner the said mark or name as well as the said get-up in the neck labels as well as in the packing box has acquired great popularity in the market in Calcutta, Madras, Kanpur, Delhi, etc., and has become associated with the petitioner. So much so that the sales of such Ganjies rose from ₹ 97,000/- in 1960 to ₹ 8,50,000/- in 1968. The petitioner's advertisement expenses rose from ₹ 10,000/- to ₹ 16,000/- during the said period. Thus the petitioner came to acquire a proprietary right in the said mark MOTI , The petitioner came to know about the use by the defendant of the name SACHA MOTI with regard to the Ganjies manufactured by the defendant from an advertisement appearing in the Hosiery Sandesh during Diwali 1968. 3. According to the petitioner the said mark is a deceptive imitation of the petitioner's aforesaid mark or name and is likely to deceive purchasers and intending purchasers into believing that the said goods bearing the label SACIIA MOTI are the goods of the petitioner for inter alia the following reasons:-- (a) Phonetical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome distinctive of his goods. Substantial number of members of public must understand the name or sign or mark or get-up to mean or signify goods manufactured by the plaintiff. (See Article 998 page 597 Halsbury 3rd Edn.). The plaintiff must further show that the defendant's use of the disputed name or mark was likely or calculated to deceive or cause confusion or injury actual or probable to the goodwill of the plaintiff's business. 6. In the case of Amritdhara Pharmacy v. Satyadeo Gupta, [1963]2SCR484 the Supreme Court while considering as to what was likely to deceive or cause confusion for the purpose of deciding an objection to an application for registration of Lakshaman Dhara in respect of medicinal preparation observed as follows:-- (1) There was no criteria for determining what was likely to deceive or create confusion. (2) Each case must depend on its peculiar facts. (3) But a mark is likely to deceive or cause confusion by its resemblance to another if it is likely to do so in the course of its legitimate use as a mark where the two marks are assumed to be in use by traders. 7. The Supreme Court quoted with approval the observations of Parker, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kilful enough to devise a scheme which would have the effect which he desired, or in other words he is not allowed to say that his fraudulent act would have the effect which he desired that it should have. 12. Ext. A dated 27-2-1965 shows clearly that there was business relations between a partner of the defendant firm and the plaintiff since 1985 in respect of the same goods having the mark which are the subject-matter of this suit and application (See paragraph 25 of the petition and affidavit of K. R. Kundu affirmed on 18-12-1969 -- paragraph 5). 13. The gradual increase of sale of Plaintiff's . goods from year to year which appears from the figures of the said sales appearing in paragraph 20 of the petition show that the petitioner's goods attained distinctiveness in the market. These figures are not disputed by the Respondent. 14. 'SACHA MOTI' according to the defendant has been used by them since July 1966. But 'MOTI' is being used by the petitioner from 1950. 15. It is urged in opposition to this application by Mr. Das that : (i) Previous suit against Samarendra Narayan Chowdhury was settled. Only interlocutory order was passed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te confusion in the minds of customers while purchasing on the basis of such marks, defendant's goods believing them to be plaintiffs. The cause of action for Passing off is complete. 21. No objective standard can be laid down for ascertaining the degree of resemblance necessary to cause deception. But the identification of the essential features of the mark in the goods of the plaintiff is in a sense a question of fact and would in the ultimate analysis boil down to the question as to whether the mark used by the defendant as a whole is deceptively similar to the mark of the plaintiff. 22. 38 Halsbury 597 Article 998 has laid down the essentials of the cause of action in an action for passing off or preventive use of trade name. The plaintiff must prove the following fact: (i) A disputed name or mark or sound or get up has become distinctive of the plaintiff's goods so that the use of the said name of mark etc., in relation to goods are regarded by a substantial number of members of public or in the trade as coming from the same source. (ii) The defendant's use of name or mark was likely or calculated to deceive and cause confusion and injury, actual or pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in general arrangement. A mark should therefore be considered as a whole on its total impression and as a general rule. Attempts to dissect a mark in order to destroy distinctiveness have been disapproved. Its totality of the impression, phonetically and visually which is the test. If that totality of impression is likely to cause deception or confusion then the identity is established. If not then they are dissimilar. 28. Resemblance in the respective get-up of the two marks and the phonetical similarity of 'MOTI' and 'SACHA MOTI' seems to me to be likely to mislead purchasers in our country by whom the said goods would normally be bought. In this connection it should be noted that the word 'SACHA' is a qualitative word and would signify merely purer quality of the same goods. In this connection it should be noted that the word 'SACHA is written or printed above the word 'MOTI' in smaller letters and importance has to be attached to the size of the letters used in different parts of the same name (See Mitzler v. Wood (1878) 8 CH D 606 . It also appears that the defendant has no mill for manufacturing those goods. The defendant carries on b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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