Defendant to prove about his unawareness regarding use of trade mark of plaintiff.

1. One Aravind Laboratories, a registered firm represented by its Senior Partner A. V. Srinivasan, has filed the above suit for (1) a permanent injunction restraining the defendant V.A. Samy Chemical Works from manufacturing, selling and offering for sale 'Kajal

"with offending trade mark Rani Eyevix; (2) accounting and for recovery of profits earned by the defendant by way of damages for the infringement; and (3) for directing the defendant to surrender all the cartons, labels and any other printed matters containing the offending Rani Eyevix trade mark together with the blocks.

2. The allegations in the plaint are briefly as follows: - The plaintiff and his predecessors in title have been dealers in cosmetic for about 50 years. Their main products are Kajal used for beautifying the eye and Kum Kum used by Indian ladies. In the year ending 31-3-1983, the Plaintiff's turnover amounted to Rs. 1, 58, 14, 125/-. All their 24 different types of products are known in the market by their trade mark "EYETEX" registered as early as 1946 under the Trade Marks Act, 1940. The name Eyetex has become the special distinctive trade mark identity for all their products. This is also reflected in the judgement of this court reported in Aravind Laboratories v. Annamalai Chettiar, (1981) 1 Mad LJ 75: 1981 AIR(NOC) 13).

3. Kajal (collyrium) produced by the plaintiff is marketed in a black circular plastic capsule, on the face of which is embossed the words EYETEX Registered. Alongwith the capsule an inch long plastic stick with handle is also supplied for applying the Kajal to the eye lashes so that the Kajal does not stain the fingers. The plastic capsule is wrapped by a sheet giving directions for use and along with the plastic stick it is packed in a square cardbord box.

4. The principal face of the square cardboard box contains the registered trade mark of the plaintiff bearing No. 124824 (Class 3) registered in the year 1946. It contains the profile of a face with prominent eyebrow and eyelash. Words "Eyetex" written horizontally in bold, distinctively created letters and "Regd" are written at the bottom to indicate that the entire design and the legend are registered. The three colours; green, white and black are used in artistic combination to give an arresting effect even at the first glance. The reverse face of the carton contains a circle, in which the address of the plaintiff is printed. There is an artistic background with the design of several floating eyes in green. On top the weight of the contents viz. 1.5 grams and the price Rs. 1.25 are printed. On the remaining four rectangular sides, the address of the plaintiff, Eyetex Kanmai in Tamil, Kajal in Hindi, Katuka in Telugu are printed. In the back ground eye is printed in green. The picture of the eye is the dominating motif of the carton.

5. The Plaintiff and their predecessor in title have been using the above design and carton for about 40 years. The product of the plaintiff is associated in the minds of their consumers with the above distinctive design, get-up, colour combination and the style of writing. Along with the capsule the plaintiff keeps an instruction sheet which contains the details of the registration, direction for use and brief history of the product in six different languages, namely Tamil, Telugu, English, Malayalam, Kannada and Hindi.

6. In 1980 Kajal Collyrium with the address of the Defendant was found to be sold in a number of outlets in the city of Madras. It was filled in black plastic capsules exactly similar to that of the Plaintiff. The capsule was packed in a square cardboard box similar in design, colour combination, get up and size of the cardboard box of the plaintiff, with the word EYEVIX in the place of EYETEX. The combination of the three colours; black, white and green are identical to that of the plaintiff. On the reverse the address, the price, weight, etc. and in the background the design of many eyes in green are printed.

7. The plai