The use of a trade name, which has acquired distinctiveness, cannot be infringed by another party, as it leads to public confusion.

1. In this suit the plaintiff, who carries on business as 'Kala Niketan', seeks a decree for permanent injunction restraining the defendant, its servants, agents, representatives and dealers from, directly or indirectly, dealing in Sarees and other textile goods as 'Kala Niketan' or any other identical or deceptively similar trade name; an order for destruction of dies, blocks, transfer labels and any other material bearing the impugned trade name and for rendition of accounts.

2. According to the allegations in the plaint, the business of selling sarees as 'Kala Niketan' was started by Shrimati Morni Devi at 2343/2, Ajmal Khan Road, Karol Bagh, New Delhi, on April 7, 1957. In April, 1958, she took her two sons, Shambhoo Nath Khanna and Krishan Lal Khanna, in partnership with her in the said business. Shambhoo Nath Khanna retired from the firm with effect from June 15, 1966. Shrimati Morni Devi also retired with effect from April 1, 1972 after assigning her share and interests in the partnership business, goodwill, stocks etc. in favour of remaining partner, Krishan Lal Khanna, who was carrying on the said business as its sole proprietor since then. The trade name 'Kala Niketan, it is stated, had acquired a valuable goodwill and reputation amongst the trade and public because of its long and extensive user since 1957. The annual sale from April 7, 1957 to Mar. 31, 1958 was of Rs.2,49,410.53. In the financial year 1975-76 it was increased to Rs.11,06,840.70 and in the Year 1976-77 the annual sale was of Rs.10,26,420.45. The plaintiff had given wide publicity to its trade name through newspapers, radio, hoardings and other media and the name is stated to have become popular amongst the public and the trade. The defendant being aware of the rights and interest of the plaintiff in this trade name with mala fide and illegal design, adopted the same trade name and started business in Sarees with a view to earn illegal profits on the reputation and goodwill of the plaintiff - firm. The defendant was passing off and causing confusion in the trade and public that he was in any way connected with the plaintiff - firm. The Sarees were purchased by ladies and they were bound to be confused on account of the deceptive similarity between the two trade names. The defendants had no right or interest to use and to pass off the plaintiff's trade name or its business. Defendants by this act had put the plaintiff to a great loss. The defendant - firm was served with a notice in Dec., 1977 to stop user of the said passing off, but they did not stop the passing off of the trade name 'Kala Niketan' in spite of assurances. On the other hand, they with mala fide intention published a caution notice in the Indian Express, dated May 13, 1978 claiming that defendant - firm was the proprietor of the name 'Kala Niketan' in respect of trade of all kinds of Sarees and textiles etc.

3. The suit was resisted by the defendant - firm. It was pleaded that the defendant adopted its trading style, namely, 'Kala Niketan' in the year 1975 and had been using the same bona fide continuously without any reference to the plaintiff's trading style. The words 'Kala Niketan', it was alleged, were wholly descriptive in the trade of sarees and there were a number of traders and dealers in Sarees using the said trading style and the defendant was saved under the provisions contained in S.34 of the Trade and Merchandise Marks Act, 1958 . It was also alleged that there was no question of any confusion because the defendant's shop was situated in a different market at a considerable distance. All other allegations were denied.

4. The following issues have been settled:
1. Whether the defendant is not