9911796707
TMI Blog1970 (8) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... a particular style in neck labels and stitched to the neck of each Ganjies or Vest. The said label and 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A MOTI' is used by one B. M. Oswal Hosiery of Ludhiana. The said mark has already been registered with the Registrar of Trade Marks. 5. In an action in passing off for injunction the plaintiff must prove that his name, mark, sign or get-up has become 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade or business. Still the presence of fraud makes an enormous difference. Given a case of fraud, the Court does not allow the defendant to say that his intention to take what was not his and to damage the plaintiffs would be ineffective. The Court assumes that the rogue was skilful 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods or on the packages in which the defendant offers his goods for sale are similar to the get up, packing and other writing of the marks on the goods or on the packages in which the plaintiff offers his goods for sale so that it would be likely to create 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., i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as follows:-- "Distinctiveness being primarily a matter of fact. Evidence can be given regarding distinctiveness in fact. There are no narrow or rigid rules about distinctiveness. Such distinctiveness may be either in individual feature or 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 lett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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