A registered proprietor of a trademark is entitled to an injunction restraining the passing off of goods or services as those of the registered proprietor.

RAMAPRASADA RAO, J. :- The Defendant is the appellant. The plaintiff, a trader and manufacturer of beedies, whose mark is admittedly known as "No. 4 Jadi Beedi" filed this action against the defendant contending that the defendant several years after the plaintiff started manufacturing and marketing of such beedies has designed a mark which is deceptively similar to and resembling in every material particular to his mark of "No. 4 Jadi Beedi". The defendant has adopted a mark known as No. 4 AG Beedies." but the plaintiff's case is that in order to cut at his trade the defendant has designed the mark and was using it on the labels attached to the beedies as also on the wrappers and even a casual comparison of the beedi packets and bundles would disclose a close resemblance as between the two marks and designs, that the Plaintiff is entitled to an automatic decree of permanent injunction restraining the defendant from passing off or attempting to pass off the beedies now sold by him under "No. 4 AG" mark with the wrappers, designs and labels containing such mark. The plaintiff also would allege that the defendant is under selling his beedies and is thus cutting into the volume of the plaintiff's business as well.

2. The defendant, in his written statement, denied any such resemblance and much less deceptive similarity between the two marks. He traced the history of his business and as to how he designed for himself the literature over the wrappers and invented on his own the mark "No. 4 AG" and his contention is that "AG' consists of a mixture of the first letter in "Anna Beedies" and the first letter in "Gem Beedies" which he started and that therefore he had a right to use this invented mark of his on the products manufactured by him and the plaintiff is not entitled to a permanent injunction as prayed for. It may be noted that the plaintiff came to Court for the grant of permanent injunction on the foot that the Defendant was passing off his beedies as if they were of the manufacture of the plaintiff by adopting a mark which is so near and so much deceptively similar to his mark of "No. 4" beedies. It appears that the defendant raised an objection in the course of the trial that as the mark was not a registered mark under the provisions of the Trade and Merchandies Marks Act, 1958, the plaintiff was not entitled to any relief. The plaintiff, during the pendency of the suit, got his mark "No. 4 beedies" registered under the provisions of the above Act and we are informed that the plaint was amended after the plaintiff secured such a registration of his mark. But it is curious that an additional issue was not raised in the pleadings as to the nature of entitlement of the plaintiff after he secured such a statutory right under the Trade and Merchandise Marks Act, 1958. On the pleadings as they stood but in the above circumstances the following issues were raised.

"1. Whether the plaintiff had acquired a proprietary title to "No. 4 Mark Beedies" ?

2. Whether the defendant's AG mark beedies are identical with or deceptively similar to the plaintiff's A-4 mark beedies ?

3. Whether the defendant is passing his beedies as those of plaintiff's No. 4 mark beedies ?

4. Whether the plaintiff is estopped from filing this Suit?

5. Whether there was inordinate delay in filing the suit and is it liable to be dismissed on that ground ?

6. Whether the plaintiff is not entitled to the exclusive right to the 'No. 4 mark Beedies' on account of the non-registration under the Trade Marks Act?

7. To what relief is the plaintiff entitled ?

The learned Judge came to the conclusion that on a fair comparison of the two marks, they are so deceptively similar that they are likely to cause utter confusion in the minds of the unwary purchasers who, in the instant case, belong to a peculiar class, not being the normal purchasing members of the public. He also found that by reason of the trade mark having been registered in the course of the trial the plaint