AMITABH BANERJEE, J.

( 1 ) THIS appeal has been filed by plaintiff-appellant Bata India Limited, against an order dt. 24th Dec. 1983 passed by 1st Additional District Judge, Meerut, refusing the prayer for the grant of a temporary injunction against the defendant-respondents in a passing off action brought by Bata India Limited.

( 2 ) BATA India Limited, hereinafter referred to as the plaintiff Company filed a suit No. 56 of 1983 in the court of District Judge, Meerut against the defendant respondents with the prayer that their servants, employees and agents be restrained from using the mark "batafoam" or otherwise associating the name of bata in any manner or form in advertisements etc. and further restraining them from "passing off" or enabling others to pass off mattresses, sofas, cushion and other articles as and for the plaintiff Companys goods and from selling or offering for sale any articles associating them with the name of bata in any manner or form. Their further prayer was that the defendants and their servants, employees and agents be directed to deliver the infringing labels and marks of bata for destruction. Their further case was that they have achieved a phenomenal success in the Indian market and have acquired goodwill for its goods all over India. Even before the advent of Trade Marks Act, 1940 the plaintiff-Company acquired a great name and reputation for its goods. The name bata was associated with the goods produced by the Company. Before the enactment of the Trade Marks Act, 1940, the plaintiff- company had a declaration registered in the office of the Registrar of Assurance, Calcutta, asserting its exclusive right to the user of the sole name bata. After the enactment of the Trade Marks Act, 1940, the plaintiff-Company registered its trade mark bata in respect of several types of goods including canvas, rubber, rubber plates, leather shoes, rubber monlith etc. , included in Cl. 55 of the fourth Schedule of the Trade Marks Rules, 1942. The registered number is 6574 dt. 28th Oct. 1942 and the Trade Mark stands duly renewed. The plaintiff Company by way of abundant precaution against infringement obtained registration of the name bata in all major Indian languages and also got it registered in English language in capital letters. Apart from the above registered trade mark, the plaintiff-Company had also a trade mark bsc (standing for Bata Shoe Company) and its registration number is 270102. bata is put on all goods produced by the Company as well as cartons in which they are marketed. The goods manufactured by the plaintiff company are of very high quality and conform to international standard.

( 3 ) IN or about June, 1983, an advertisement came to the knowledge of the plaintiff-Company of the mark batafoam in the daily newspaper dainik Jagran published from Kanpur and Varanasi dt. 28th Feb. , 1983 advertised by defendant 2 inviting applications for dealership for sale of mattresses, sofas, cushion etc. , when it was evident that the defendants were using the registered name bata of the plaintiff-Company in the same form and style as that of the plaintiff-Company and the goods of the defendants were likely to be mistaken for the goods of the plaintiff-Company by ordinary purchaser having average memory. The plaintiff alleged that the defendants were, thus, infringing the trade mark and damaging the rights.

( 4 ) SINCE the trade mark batafoam appearing in the advertisement was deceptively similar to the plaintiff Companys registered trade mark bata, the plaintiff company wrote to defendant 2 calling upon him to forthwith cease and desist from using the trade mark bata in any manner or form. The allegations were denied by defendant 2 in the letter dt. 20th July, 1983. Repeated request was made by the plaintiff Company to defendant 2 to stop the use of the trade mark bata. This letter was not accepted and returned to the plaintiff Company with the remark "returned". It was further alleged that the defendants w

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