A MANUFACTURER OF TOYS WHO HAS BEEN USING A TRADEMARK SINCE 1987 AND HAS APPLIED FOR ITS REGISTRATION HAS A PRIMA FACIE CASE OF PASSING OFF AGAINST A COMPETITOR WHO STARTED USING THE SAME TRADEMARK ONLY IN 1990.

( 1 ) THIS is an application by the plaintiff for issue ofan ad interim injunction under Order 39 Rules 1 and 2 of the Civil Procedure Code restrainingthe defendant, their servants and agents from manufacturing, selling, offeringfor sale, advertising or displaying, directly or indirectly, their toys or stuffedtoys under the trade mark cuddles or any other trade mark identical withor deceptively similar to the aforementioned trade mark of the plaintiff.

( 2 ) BRIEF facts which led to the present application are : that the plaintiffis a firm and Smt. Vinay Chawla is the sole proprietress of the said firm. Thesaid firm deals in toys under the trade mark cuddles . The plaintiff hasbeen using the said trade mark since long i. e. 1/01/1987. The goodsof the plaintiff bearing the said trade mark are in huge demand in the markets. The plaintiff with a view to acquiring the statutory rights in the said trademark moved an application bearing No. 505426 before the Trade Markregistry, New Delhi on 15/02/1989 for all types of toys. The saidapplication has been accepted for registration by the Trade Mark Registry,bombay vide Order No. U-8/2759, dated 30/07/1991 and as such, registrationcertificate is to be issued shortly in favour of the plaintiff. Besides the abovethe plaintiff also claims to be the proprietor of the said trade mark on accountof its prior adoption and subsequent user. The said trade mark alluded to abovehas already become distinctive and is associated with the aforesaid goodsbelonging to the plaintiff on account of its long, continuous extensive and exclusive user. The goods belonging to the plaintiff bearing the said trade markare very much in demand on account of their standard quality and precision. The plaintiff has also advertised the said trade mark through the distributionof trade literature and by displaying the same on packing material of the aforementioned products. The plaintiff has as such spent a substantial sum of moneyon the publicity of the said trade mark. The plaintiff has been using the saidtrade mark all alone without any interruption or interference from any quarter,whatsoever.

( 3 ) THE defendant (hereinafter REFERRED TO to as respondent) are alsoa dealer in stuffed toys under the trade mark cuddles . The saidfact came to the notice of the plaintiff through an advertisement in amagazine known as chandamama of May, 1991. The defendant is notthe proprietor of the trade mark cuddles in respect of stuffed toys or toysto any type. The respondent adopted the impugned trade mark in respectof stuffed toys and toys out of greed with a view to taking advantage ofthe reputation of the plaintiff (hereinafter REFERRED TO to as the applicant) tomislead the public and to practise deception and create confusion in the mindsand to pass of their spurious goods as that of the applicant. The resemblancein between the two trade marks i. e. the one belonging to the applicant and theother belonging to the respondent is so close that it could not have occurredexcept by deliberate imitation. The said trade mark is bound to cause confusion and deception in the normal course of business. The respondent arethus guilty of passing off their goods and business as that of the applicant. Therespondent thus must give up the use of the trade mark as the applicantis suffering huge losses, both in business and in reputation. Thus, the primafade case is in favour of the applicant, the balance of convenience is also inher favour. The applicant is likely to suffer irreparable loss and injury incase the injunction is not issued in favour of the applicant restraining the respondent from passing of their goods under the trade mark cuddles belonging to the applicant. Hence the present application. The applicationis supported by an affidavit.

( 4 ) THE respondent have resisted and opposed the above applicationthrough an application under Order 39 Rule 4 CPC, being I. A. No. 12208/91inter alia, on the following grounds : that