Registered trade mark "EXETEX" not infringed by trade mark "EXE502".

S. Swamikannu, J.

1. This appeal s by the plaintiffs against the Judgment and decree, dated 17th day of November, 1976 in O.S. No. 36 of 1975 on the file of the Court of the learned District Judge, Chengalpattu, decreeing the suit in favour of the plaintiffs restraining the defendant or his agents by a permanent injunction from using the Trade Mark similar to the Trade Mark used by him as shown in Exhibit A-5 so as to be deceptively similar with the carton of the plaintiffs, as affixed in the plaint. The carton of the plaintiffs and Exhibit A-5 were directed to be annexed to the decree. The trial Court also observed that inasmuch as the plaintiffs themselves had not raised any objection for the use of the name "Eyesol" by the defendant (Exhibit A-10) the defendant will be free to use the same name by printing the same in a different manner from that of the plaintiffs. In the circumstances, the parties were directed to bear their own costs by the trial Court.

2. The suit was for declaration of the exclusive right of the plaintiffs to the Trade Mark and for permanent injunction to restrain the defendant from passing off his goods and also for recovery of Rs. 10.000/- as damages.

3. The memorandum of cross-objections is by the defendant, M/s. Eyesol Laboratories, represented by its proprietor, Annamalai Chettiar against the said decree and judgment passed by the learned District Judge, Chengalpattu in the abovesaid suit, O.S. No. 36 of 1975.

4. The case of the plaintiffs, M/s. Aravind Laboratories before the trial Court is that they are the manufacturers of Collyrium and other toilet preparations under the registered Trade Mark "Eyetex". Their firm, which is a registered one is engaged in the manufacture of Collyrium under the registered Trade Mark under special design, get up, and distinctive attractive marks. They are successors in trade from one, P.K. Vasudevan, who used the same name and Trade Mark "Eyetex" for the products manufactured and distributed by M/s. Aravind Laboratories carrying on business at Valasaravakkam, Arcot Road, Madras. The predecessors in trade had registered the mark "Eyetex" under Trade Mark NO. 124824, dated 11th September, 1946. It is also the case of the plaintiffs, that the plaintiff's carton on the front face shows the eyebrow, eyelashes and side hair of the head with small eyeshaped design in front of the eyeball, that even then, the defendant had made a false claim that his carton was registered under the Trade and Merchandise Marks Act, 1958, and the same is a deliberate falsehood. The plaintiffs after the purchase, registered the design on the front face of the carton and also the entire format of the carton under Trade Mark No. 271584, and it is dated. 24th April, 1971. It is also the case of the plaintiffs that they have acquired a special right to the exclusive use and advertisement of the carton and a long-standing ding and assured reputation at the hands of the public for over 30 years. The goodwill and the Trade Mark have put the plaintiff's goods in the market acquiring wide reputation and extensive demand. The defendant, who has been manufacturing the Collyrium has been passing it off as that of the plaintiffs by copying their design. Trade Mark, colouration, print and size, etc., of the carton with all distinctive, exclusive marks of the plaintiffs and he has chosen to give the name as "Eyesol" According to the plaintiffs, the Trade Mark of the plaintiffs is fully exploited to the point of similarity, in all respects except in few details. The important features are : -- The eye side hair, eyelashes, eyebrow, sea of floating eyes, on the front and reverse, and small eye letter design in front of the eye in green and the final special mark in the use of words, as special type of 'eye' (Eyetex). In the beginning, the cartons of the defendant ware red, later changed to black and now a clear and full imitation of the plaintiffs in all aspects. According to the plaintiffs the defendant