( 1 ) THIS case relates to SUPERFLAME. What would be required to be determined in this case, is whether any proprietary rights can, or have been acquired in the word/name SUPERFLAME.

( 2 ) A "trade Mark " is defined in S. 2 (v) of the Trade and Merchandise Marks Act, 1958 thus (v) "trade mark" means

" (I) in relation to Chap X (other than S. 81), a registered trade mark or mark used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark; and (ii) in relation to the other provisions of this Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark registered as such under the provisions of Chap. VIII;"a mark is also defined in the Act in S. 2 (j) which reads as under :

" (J) "mark" includes a device, brand, heading, table, ticket, name, signature, word, letter of numeral or any combination thereof;"a "name" is defined in S. 2 (k) which reads as under:

" (K) "name" includes any abbreviation of a name. "

( 3 ) IT is not asserted by the plaintiff in this suit that SUPERFLAME is a "registered trade mark". SUPERFLAME not being a registered trade mark, the instant suit cannot be an "infringement" action, and it is conceded to be a "passing off action.

( 4 ) A distinction between an infringement action and a passing off action is statutory by virtue of the provisions of S. 27 of the Act. Section 27 (1) of the Act prohibits institution of any proceedings to prevent or to recover damages for infringement of an unregistered trade mark. Sub-section (2) of S. 27 declares that nothing in the Act shall be deemed to affect the rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. Infringement proceedings are controlled by the provisions of S. 29 and S. 30 of the Act. Section 29 deals with the nature of an infringement action, and S. 30 states what does not constitute an infringement. (S. 30 ). Section 105 of the Act lays down that a suit for infringement of registered trade mark, or a passing off action cannot be instituted in any Court inferior to District Court having jurisdiction to try the suit.

( 5 ) THIS passing off action is somewhat unusually intituled and the plaintiff is stated to be "globe SUPER PARTS" (sole proprietor Super Parts Pvt. Ltd) 17/1, Mathura Road, Faridabad (Haryana ). This peculiar intituling of the plaintiff has also led to considerable arguments. The plaintiff has sued two persons as defendant, the first defendant is "blue Super Flame Industries", 5d/8e Railway Road, Faridabad (Haryana); and the second defendant is Ganga Ram Varma, 5j/18, NIT Faridabad (Haryana ).

( 6 ) THE plaint, in the suit, recites in para 1, inter alia, that Rahul H. Rai, who is a Director of Super Parts Pvt. Ltd is duly authorised and competent to sign and verify the plaint and institute the suit. It is stated in the plaint that the plaintiff has been manufacturing gas appliances since the year 1968. These gas appliances are set out in Annexure a and a number of them are categorised as "gas stoves", while some are stated to be "grill" and yet another is stated to be a "cooking range". It is said that the goods manufactured by the plaintiff are manufactured and marketed under the trade mark superflame and as the word SUPERFLAME appears in all the products of the plaintiff, the same has acquired the status of "house mark," which is stated to have been in continuous use since the year 1976 and on account of extensive advertising and publicity and sales promotional schemes and on account of the alleged high quality of the