Bhavadasan, J.

The plaintiff, who failed to secure any relief against the defendants in an action for passing off is the appellant.

2. The plaintiff claims to be carrying on business of manufacturing, processing and sale of rice in the State of Gujarat at Bareja, Descroi Taluk in Ahamedabad District since 1982. He claims to be a leading manufacturer and seller of raw rice under the trade mark ‘Taj Mahal’ brand Surati, Superfine No.1. The trade mark consists of the pictorial representation of “Taj mahal” and the words written “King of Rice, Mahavir Rice Mills” in Devanagari script at the top of the bags containing rice. The plaintiff has applied for registration of copyright and the said application is pending under the Copyright Act. The plaintiff has been using the trade name and the logo from 1984 onwards and business in rice has earned a reputation under that name. The superior quality of raw rice sold under the above trade mark has gained wide reputation and the rice so sold is identified with the plaintiff’s firm. There is a distinctiveness and the plaintiff has acquired a right to use it exclusively. The allegation is that defendants 1 to 3 who are selling low quality rice are passing off their goods adopting the trade mark of the plaintiff. The get up, lay out and arrangement adopted by defendants 1 to 3 are intended and sufficient to cause confusion and deception in the mind of the traders and public and with a view to pass of inferior quality rice as that of the plaintiff. Defendants are not entitled to do so. Various other facts are also stated, which are not very relevant for the present. It is claimed that on accounts of long continuous uninterrupted and exclusive use of the trade mark Taj Mahal in relation to the goods (rice) manufactured and marked by the plaintiff, the said trade mark is understood to denote the rice sold by the plaintiff. The plaintiff applied or registration of trade mark as early as in 1985 and the application is pending. On completion of the formalities, the plaintiff is likely to get the trade mark registered with effect from 11.1.1985 and the plaintiff came to know that the defendants are passing off their goods using the trade mark of the plaintiff. They are thereby earning unlawful and illicit profits. Defendants 4 to 7 are sellers of goods dispatched by defendants 1 to 3 in bags containing deceptively similar trade mark as that of the plaintiff. On the basis of these allegations, the suit was laid.

3. Defendants 1 to 3 resisted the suit. They denied the allegation in the plaint. According to them the suit is not maintainable under Section 69 of the Indian Partnership Act. The third defendants denied that he is a manufacturer, stockist or dealer of rice. Third defendants is only a broker. Defendants 1 and 2 are only sister concerns. Defendants 1 and 2 have been manufacturing and selling fine quality rice and it was started under the name and style of the first defendant, namely, Bhavesh Trading Company, from 1981 onwards. They have been marketing and selling their products under different brands, namely, Lakshmi brand and Taj Mahal brand in several parts of India and Calicut. Plaintiff and its partners are fully aware of the said fact. Plaintiff is known to be a manufacturer alone. The rice manufactured by the plaintiff if being sold under different brands names, namely, lakshmi brand and Madholi brand. They did not market rice under the trade name Taj Mahal. The allegation against these defendants are without basis and foundation. The defendants pointed out that even according to the plaintiff the trade mark claimed by the plaintiff is not yet registered. The allegation of adoption by the defendants of a similar trade mark as that of the plaintiff with the intention to make illegal gains was also denied. They pointed out that there is no similarity between the trade mark of the plaintiff and defendants 1 and 2. No deception is caused by the trade mark adopted by the defendant