MAHINDER NARAIN. J.

( 1 ) WHAT arises-for consideration in this case is the nature and extent of rights of the plaintiff in printed pencil boxes/cartons in which the pencils are being sold by the plaintiff.

( 2 ) IN this suit as well as in this application it is contended that the plaintiff is the registered owner of trademark bearing registration No. 324515-B dated 13th April, 1977. It is asserted that the said trade mark is valid, subsisting full legal force. Thattrade rnark is in reject of fountain pens, pencils, ball pens and refills therefor, the registered trade mark in terms of the certificate, of registration in two words CAMLIN FLORA.

( 3 ) IT is also asserted in the application, as also in the suit that the plaintiff is the owner of copyright in the floral design that appear on its printed cartons/boxes and that the design. thereon, in "original artistic work". It is also asserted that the respondents are passing off their goods as goods, of the plaintiff.

( 4 ) IT is asserted that the plaintiff is one of the largest manufacturer of art and stationery materials in India and have been exclusively marketing the goods of its manufacture for the past 40 years; that since the year 1977, the plaintiff has been manufacturing and selling their Camlin FLORA Pencils in distinctive and artistic cartons.

( 5 ) THAT distinctiveness, which is claimed, is that the pencil in question has got colour combination of white, pink and green,. that there are. two strips of while and green next to each other at the rear portion of the pencil, that here is afloral design on the skin of the pencil, which is unique. The unique design comprises of array of pink flowers with a green leaf on the white background. It is also asserted that the same repetitive floral pattern, appears on the cartons. .

( 6 ) THE cartons, which. have been annexed alongwith the plaint, as stated above, is a printed carton made of some kind of paper board.

( 7 ) IT. is also asserted that on account. of extensive, use of the words Camlin FLORA on the pencil and the. carton /box vast reputation has been acquired, which denote. ahigh quality product originating exclusively from the applicant/plaintiff.

( 8 ) IT is asserted that the defendants are using dcceptively similarly decorated pencil and carton,, which are deceptively similar to. the pencil-decorated with the flowers, and the-cartons which are, and have been in use, of ths applicant/plaintiffs.

( 9 ) IT is asserted that the applicant had got a copyright in the artistic logo script of trade mark FLORA as original artistic work.

( 10 ) IT is also asserted the application that that CAMLIN s the house mark of the applicant, regarding CAMLIN being the house mark of the petitioner there have been no arguments urged during the course of hearing, and this question does not need consideration in this application. It may however be mentioned that Trade and Merchandise Marks Act does riot define the word house Mark . The concept of House Mark is not to be found anywhere except in an administrative orders of Comptroller General Marks in 47rpc, 37, 43 L. 34 which cannot be given any recognition in India, in view of absence of such a concept in the statutory provisions. If is possible that at a fufure date when the industrialisation of India has resulted in Mega Corporations conglomerates that House Mark may need statutoly/legal recognition by Courts. .

( 11 ) THE defendants contended that the application is not maintainable on account of unreasonable delay and laches on the part of the applicant/plaintiff and that the defendants cartons bearing the word CAPTAIN ELORA with numbers 1180 in connection with their pencil have been in use since 1-4-1981, and that the suit filed in 1985 is without any explanation of the delay Of four years. It is also asserted by the defendants that they are the registered owners of the carton "entitled" CAPTAIN ELORA which is (registered at No. A-36907/82 under the Copyright Act, 1957 and that

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