Minute difference in labels constitutes infringement.

1. Thedefendants in O.S.No.1 of 1998 on the file of the Principal District Judge, Srivilliputhur and the plaintiff therein are the appellant and the respondent respectively in this appeal before this Court. In this judgment the parties to the appeal would hereinafter be referred to as the plaintiff and the defendants. The said suit was filed for an injunction restraining the defendants from manufacturing and selling match boxes containing the infringing trade marks of the plaintiff; for accounts; damages estimated in the plaint at Rs.500 or such other sum as may be found due by the court and for a mandatory injunction directing the defendants to produce into court the offending marks and labels including blocks and dyes. On contest the suit was decreed restraining the defendants from infringing the plaintiff’s trade mark for accounts and surrender of the offending marks, labels, blocks and dyes. It is the correctness of the said judgment that is being questioned in this appeal before this court by the defendants.

2. The case of the plaintiff is summarised as hereunder:

"The plaintiff is a Private Limited Company incorporated under the Indian Companies Act. The plaintiff is engaged in manufacturing and selling safety match boxes from 1951. The match boxes of the plaintiff has got reputation almost all over India. In this trade it is the custom and practice to affix a label with a picture or symbol or letter on the top corner of the outer match box in order to identify its makers. Similarly the plaintiff also invented a label and affixed the same on top of each and eve ry match box manufactured by them. The said label was also approved by the Assistant Collector of Central Excise at Madurai by order dated 51. The label contains the picture of a man with a whip on his right hand ploughing with the help of two bulls. On the left side top corner of the label, the words "KISAN" is written and on the right side the same words in Hindi are written. The plaintiff’s label is produced along with the plaint. The said label is also registered in the name of the plaintiff by the Registrar of Trade Marks, Bombay in Clause 34 of the Trade and Merchandise Marks Act, 1958 on 2. 60, the registration number being 194390 in respect of the matches except for sales in West Bengal, Bihar and Assam. The plaintiff is using the said trade mark since then exclusively. The registration of the plaintiff’s label is renewed upto date and it is in force. The plaintiff’s label has become very popular in the market and it has been associated with the public. The product of the plaintiff is of a high quality and it is used by literate and illiterate. The sales turn over of the plaintiff is increasing year after year. On 30.7.96 it was brought to the knowledge of the plaintiff by their lawyers letter dated 27. 96 that one Venus Match Works, Mamasapuram had applied for registration of its match box label, which is identical and deceptively similar to that of the plaintiff’s label. That label also contains the picture of a man with a whip and two bulls. That application was allotted with No. 466983 and was advertised on 2. 97. The plaintiff filed their objections to the registration of the said mark under section 21 of the Trade and Merchandise Marks Act. After hearing both the parties, by order dated 19. 97, that application was treated as abandoned. That order had become final. All the defendants are proprietary concerns and they are also manufacturing and selling safety match boxes. All the proprietors of the defendants were originally working in Venue Match Works, Mamasapuram referred to earlier. After the said Company surrendered its licence on 27. 96, the defendants are running separate match factories under the name and style shown in the cause title. The defendants are fully aware of the plaintiff’s trade mark; its popularity as well as its registration. The defendants are also aware about the application made by Venus Match Works for registrat