Infringement of trade mark cannot be allowed.

(Appeal against the judgment and decree dated 13.08.2004 made in O.S.No.2 of 2001 on the file of Principal District Judge, Pondicherry.)

M. Karpagavinayagam, J.

M/s. Bala Arichandra Tex, appellants herein, are the defendants in O.S.No.2 of 2001 on the file of Principal District Judge, Pondicherry. M/s .Bharat Arichandra Tex, respondent herein, is the plaintiff in the said suit, which was filed for a permanent injunction, restraining the defendants from using the name 'Arichandra'. The suit was decreed in favour of the plaintiff. Hence, this first appeal by the defendants.

2. For convenience, we refer the parties, as arrayed in the suit.

3. Case of the plaintiff, in short, is as follows:

"(i) Plaintiff is the sole proprietary concern, carrying on business in textile goods and readymade garments under the trade name 'M/s.Bharat Arichandra Tex". She has been doing business under the above name for more than four years. She has gained reputation and goodwill in her business among the general public, only by using the trade name 'Arichandra'. The name 'Arichandra' is also written in a unique style and manner in Tamil. She acquired a right of propriety over the said trade name by wide and extensive use of the said name in the field of textiles. She has a sales turnover, running to several lakhs of rupees.

(ii) Defendants started a business in textiles, similar to that of the plaintiff, under the name and style 'Bala Arichandra Tex' in September,2001, in the same street at Pondicherry, in which the plaintiff's business premises is situated. The name used by the defendants, the style and manner of writing of the name 'Arichandra' in Tamil, the nature of business carried on etc. are identical to that of the plaintiff. Plaintiff came to know that defendants are fraudulently and deceitfully selling goods to retailers and purchasers, as if the said shop is a sister concern of the plaintiff.

(iii) Plaintiff is the first to use the trade name 'Bharat Arichandra Tex' in the field of textile business. She also applied to the Registrar of Trade Mark, Chennai, on 17.09.2001, for registration of the trade name 'Bharat Arichandra Tex' and the same is pending registration.

(iv) By the use of plaintiff's trade mark, the defendants have caused unliquidated damages to the trade name and fame so far earned by the plaintiff, by marketing textile goods much inferior to the qualify of goods sold by the plaintiff.

(v) Therefore, the plaintiff, on 19.09.2001, issued a legal notice to the defendants, calling upon them to refrain from using the trade name 'Arichandra' and also from using similar style in Tamil. Despite the receipt of notice, the defendants did not choose to give any reply.

(vi) Plaintiff also caused publications in leading dailies, warning the parties from using the trade name 'Arichandra'. Even then, the defendants continued to use the same name. Hence, the suit for action on passing off, through permanent injunction."

4. Case of the defendants is as follows:

"(i) Plaintiff has no exclusive monopolistic right over the name 'Arichandra'. The plaintiff's trade mark is neither incorporated under the Indian Companies Act nor registered or approved by the competent authorities. The name 'Arichandra' refers to an Indian mythological hero. Moreover, the trade names adopted by the plaintiff and the defendants are dissimilar and are totally different from each other.

(ii) There are about half a dozen shops in Pondicherry, using the name 'Arichandra', for which the plaintiff has not raised any objection. As the defendants wanted to do business in truthful manner, they have chosen the name 'Arichandra' for their business. Further, there are innumerable differences between the trade names of the plaintiff and the defendants. The style in Tamil letters is entirely different from English letters. There is no possibility for any kind of deception. Therefore, the suit is liable to be dismissed."

5. Following are the issues, framed by the trial Court:

(1