Similarity of trade marks and cognate goods can lead to passing off, but delay in suit may disentitle rendition of accounts.

( 1 ) THIS suit for perpetual injunction seeking restraint of the defendant from passing off medicinal preparations under the trade mark goodmans and for rendition of accounts has been brought with averments that the plaintiff firm is carrying on old and established business of manufacturing and selling medicines of all kinds for the last more than four decades, and has been using the trade mark goodmans as its house mark with regard to them, The same was incorporated at Sr. No. 4 of the declaration dated 6-7-1937 and registered with the Registrar of Assurances, Calcutta. A copyright registration entitled amodine Cough Syrup with regard to its artistic label was also registered and house mark goodmans appears in the same as well. In the circumstances the plaintiffs claim that they have acquired an exclusive right to use the distinctive trade mark goodmans . and the purchasing public has come to recognise and identify their medicines under that trade mark.

( 2 ) IT has next been averred that from July 1977, the plaintiffs came to know that the defendant has started using the same trade mark, and as such a notice dated 9-7-1977 was served on the defendant. The defendant has, however, continued to use the same, and even applied for registration of trade mark goodmans on 29-6-1977, claiming user from April, 1976. That application is, it is stated, likely to be rejected. Hence this suit.

( 3 ) THE defendant has challenged the maintainability of the suit in the absence of the trade mark of the plaintiffs being registered. Its valuation for purposes of court-fee and jurisdiction has also been assailed. It has next been added that the defendant is manufacturing different description of goods than those alleged to be produced and manufactured by the plaintiffs. The goods manufactured by the plaintiffs are stated to be not available in the market. It is denied that the plaintiffs have been using the trade mark from 1937. It is, however, admitted that the defendant has started using the trade mark goodmans from April, 1976, and this was because his concern s name has been Gudimani Enterprises. It has not been admitted that there was any registration obtained by the plaintiffs with Registrar of Assurances. It is added that in any case such registration would not debar the defendant from using the trade mark for his products. The copyright registration of amodine Cough Syrup has also not been admitted.

( 4 ) ACCORDING to the defendant, he is a leading manufacturer of chlorine ampoules, chlorine tablets and chlorine solution for the last many years and these are water disinfectants, formula of which was obtained by him from the National Environmental Engineering Research Institute (Nagpur), a Government of India Enterprise. His products are, it is next stated, purchased in bulk by government agencies and departments as well as municipal authorities for disinfection of water to prevent outbreak of cholera, diarrhea and such other diseases which are caused by contamination of water on account of floods, mosquitoes etc. This disinfectant, it is pleaded, cannot be termed as medicine/drugs. The defendant, it has also been claimed, has been using, the monogram consisting of two letters g and e which is absolutely distinct and different from the user of the word GOODMANS by the plaintiffs, and further the cartons, colour scheme etc. are entirely different. No deception thereby, it is contended, is caused to any member of the public. Earlier, the plaintiffs had applied for registration of the trade mark goodmans under the monogram ge in 1979 but the application stood abandoned and the plaintiffs similar request for registration of their ayurvedic medicinal oil for children under the trade mark too was refused by the Registrar of Trade Marks in April, 1979.

( 5 ) THE defendant claims that his sales are quite extensive and the trade mark goodmans has come to be associated with his disinfectants. The plaintiffs