Direction to keep accounts when to be made in lieu of injunction.

This application for interim injunction pending the disposal of Civil Suit No. 53 of 1957 is coming up for final orders.

The facts are, the plaintiff has been carrying on business in lungis and other handloom textile products under the name and style of Mohammed Aboobacker and Company with his headquarters in George Town, Madras, and its branches in Calcutta, Madurai and Quilon. This plaintiff has come to be known as Chank Aboobacker and has adopted his trade-mark as Chank or Sanghu or Conch. This. Conch has been his registered trade-mark under six registrations. We are concerned here only with one registered Number 91228. This Aboobacker who has been making use of this Conch as his registered trade-mark from 1928 under an adaptation of the main Sanghu Mark registered this trade-mark to be affixed to handkerchiefs. The plaintiff has been having an extensive business in these hand kerchiefs affixed with this trade-mark from 11th January, 1944, ‘when the mark was registered, and has been widely advertising his products at great expense. This trademark has been renewed for a period of fifteen years from 11th January, 1955. In these circumstances the plaintiff was informed by people in Bombay in October, 1956, that handkerchiefs which are inferior imitations of his product registered under No. 91228 were being sold with a reproduction of his Chank and bearing marked identity and close resemblance to it in point of size, device, background, display, design and colour, but bearing the lettering “Been Brand’.

The word "Been' has been defined in Websters’ New International Dictionary, Second Edition, Volume 1, as being a Hindi word derived from the word Bina in music and as a variety of veena and meaning a snake-charmer’s clarinet magudi.

The case for the plaintiff is that though this mark is described as a ‘Been’, it is in reality a pirating of the Conch mark and that a mere look at both the marks will establish it beyond doubt.

Therefore, the plaintiff started to contact the persons pirating his mark and giving no more details of themselves excepting as Satguru Traders, Madras. But all his letters were returned with the endorsements ‘Not found. Returned to Sender. ‘Therefore, he complained to the Presidency Magistrate. The Magistrate threw it out on the ground that the evidence was mere hearsay and nothing more.

The exploiters of the ‘Been Brand’ then disclosed their hand to this plaintiff in an advertisement in the “Trade Marks Journal” issued on 1st April, 1957. The relevant advertisement is on page 76. The user claimed it from 7th August, 1956. The plaintiff thereupon sent a lawyer’s notice to the address given therein and entered his opposition to the above application. But even this letter was returned as ‘not found’. There was no sign board or other indication in the premises mentioned as the address of the defendant. In fact the plaintiff, not to put too fine a point, says that this was a namkewasthe business intended to do nothing more than pirate and exploit the established trade-mark of the plaintiff. This gathers corroboration from the fact that the defendant has not produced his accounts and, in fact, though he said that a lot of purchases have been made from him, all the correspondence he was able to produce before me, consisting chiefly of post-cards, was trade enquiries from alleged traders of whose substantiality or genuineness or otherwise we do not know.

The defendant, it is found, have even gone one step further, and, on the butter paper cover has added the words ‘Regd. ‘and giving their Madras address with their trade name still as Satguru Traders but without their personal names. The addition of the word ‘Regd. ‘meaning registered, is undoubtedly a fraudulent description and the explanation of the defendant is that he was informed by his Bombay Solicitor, that his trade-mark was sure to be registered and that, therefore, he anticipated a little, the certain result.

It is in these circumstances that the plaintiff h