A suit for passing off is maintainable even if the trademark is not registered.

Bishan Narain, J.

1. This is a defendants appeal against the judgment and decree of the trial Court restraining the defendants from using and publishing on their chaff-cutter knives the plaintiff companys special maik consisting of a picture of a lion or its resemblance or words "lion brand" and from selling these knives bearing the plaintiff-companys special mark or hearing a mark resembling that special mark and ordering the defendants to pay Rs. 5,250/- as damages to the plaintiff-company with plaintiffs, costs. The trial Court has directed that an attempt should be made to efface the marks on the defendants knives which have been, by an interim order, given in the custody of Atma Ram Receiver and, that if this attempt is successful these knives are to be returned to the defendants, otherwise the plaintiff-company will take them and pay to the defendants at the rate of Rs. 2/- per knife. The plaintiff-company has filed cross-objections against these directions.

2. The plaintiffs Messrs. Watkins Mayor and Company carry on business in Jullundur. They import chaff-cutter knives with a figure of lion engraved thereon and the words "lion brand" underneath that figure from various countries in Europe since 1926-1927. The defendant-firm Bhagwan Das-Ramji Lal carried on business in Bulandshahr and this firm started manufacturing chaff-cutter knives in their factory, which is known as Golden Engineering Works, in December 1940. Their, knives have a mark consisting of a lion, within what is called a map of India and bear the words "lion brand" underneath that figure. Disputes soon arose between the parties and the plaintiff-company started civil and criminal proceedings against the defendant-firm and ultimately the plaintiff company filed the present suit out or which this appeal has arisen.

3. In this suit the plaintiff-company have alleged that they have been using this distinctive and particular mark since 1926-1927 and the customers consider this mark as the mark of the plaintiff-company. Their grievance as stated in the plaint is that the defendant firm have started using this mark or one reassembling it out of greed and that this mark of the defendant-firm in any case can mislead the customers of the plaintiffs knives. The defendant-firm pleaded that the suit in the present form was not competent and on the merits urged that the mark on their knives was different in shape and form from the plaintiffs mark and the customers were not and were not likely to be misled by the defendants mark and that in any case the plaintiffs had no proprietary rights in that mark. Dealing with damages the defendants denied their liability to pay the same and urged that in any case the defendants sale was very small.

4. The trial Court held that the suit in the present form was competent and Section 20, Trade Marks Act, 1940 was not a bar to it. On the merits the trial Court found relying on the oral and documentary evidence produced by the plaintiffs and also relying on some of the defendants evidence that the long user of the trade mark by the plaintiff was proved, that this mark had acquired great repute and was associated with the plaintiffs knives and that the plaintiffs had acquired proprietary rights in it. It was further held that the defendants mark on their knives infringed the plaintiffs right. The trial Court then computed the damages on the basis that the defendants sold 700 knives per mensem and that calculating the profits at annas -/6/- per knife the defendants were liable to pay Rs. 5,250/-as damages to the plaintiffs as the profits which the defendants had earned by selling their knives under that mark.

5. The first point urged by the learned counsel for the defendants was that Section 20, Trade Marks Act, 1940 was a complete bar to the present suit.

Section 20(1) reads:-

- "20(1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark u