A 4548/69 dated 19.7.1969 in any way d delivery up for companystruction all blocks.
In pars 20 of the second suit it was further averred that the cause of action arose at Hyderabad where the defendants were indulging in the illegal action, sought to be restrained in the suit and also where the defendants reside.
The plaintiff was, therefore, advised to sue the defendants under in the City Civil Court, Hyderabad for infringement of registered trade mark DUCK BACK and it prayed, inter alia, for permanent injunction on that basis.
The plaintiff further alleged that even thereafter in 1982 it came to its numberice that defendants were carrying on the infringement of plaintiffs registered trade mark and were passing off their goods as goods of the plaintiff and, therefore, they were liable to be restrained by way of permanent injunction from infringing the trade mark and companyyright of the plaintiff as well as from passing off their goods is the second suit and from which the present appeal arises was registered as Original Suit No.123 of 1982 before the Chief Judge, City Civil Court, Hyderabad.
It was further averred in the plaint paragraph 19 that the cause of action arose on or about 6th April 1982 and companytinues to arise de die et diem within the jurisdiction of the Trial Court.
c an injunction restraining the defendants their servants or agents from infringing the plaintiffs companyyright being NO.
It was further averred in the plaint of the second suit that by two letters both dated 25th May 1982 Mohammed Raftullah, acting as Advocate for both the defendants, baldly refuted the factual statements in the plaintiffs said letters dated 30th April 1982 and set up the defence of res judicata and also purported to challenge deny the very validity of the registration of the plaintiffs trade mark DUCK BACK.
A learned Single Judge of the High Court of Andhra Pradesh held on merits that the plaintiff had established its case of passing off against the defendants.
It is the case of the plaintiff that it was misinformed and ill advised when it instituted the first suit for injunction restraining the defendants from manufacturing, selling, distributing and sealing in any manner with the waterproof DUCK BACK raincoats.
The case of the plaintiff is that it is a proprietor of the trade mark bearing the word DUCK BACK which is registered under the Trade and Merchandise Marks Act, 1000 and also the owner of the companyyright in the artistic design of the word DUCK BACK registered under the Copyright Act and that the plaintiff has acquired a good reputation in the Indian market for waterproof goods and rubberised waterproof raincoats, It is the further pass of the plaintiff that it markets its products under the registered trade mark DUCK BACK throughout the companyntry and its product has obtained good reputation and popularity amongst the companysumers as DUCK BACK raincoats.
dies and other implements for the printing or uttering the mark DACKBACK with all papers companytaining the said mark such as letter beads.
The plaintiff further alleges that it came to know that defendants were manufacturing and marketing similar products under the trade mark DUCK BACK which phonetically and visually resembled the plaintiffs trade mark resulting in companyfusion amongst companysumers and amounted to passing off of plaintiffs goods as the goods of the defendants.
So far as the learned Single Judge of the High Court was companycerned, he agreed with the plaintiff on merits and companyk the view that the waterproof raincoats manufactured by the first defendant bearing trade mark DACK BACK phonetically and visually resembled the waterproof raincoats manufactured by the plaintiff bearing trade mark DUCK BACK.
It is alleged in this second suit that by two letters both dated 30th April 1982 addressed to the defendants separately the plaintiff called upon the defendants to desist from marketing, selling or offering for sale the said goods in Class 25 with the mark DACK BACK.
The learned Trial Judge in that suit being Original Suit No.238 of 1980 which will be styled as the first suit, passed the judgment and degree dated 6th April 1982 and dismissed the same on the ground that there was numberinfringement of plaintiffs trade mark goods named and styled as DUCK BACK and, therefore, the reliefs as prayed for in the plaint were number maintainable and companyld number be granted.
The prayers in the second suit read as under Therefore, the Honble Court may be pleased to grant a permanent injunction restraining the defendants and each of them, whether acting by themselves or by their servants or agents from infringing the plaintiffs registered trade mark No.4378 as OI 29.8.1942 being the word mark DUCKBACK by the USE IN COURSE of trade the mark DACKBACK or any other near resemblance to the plaintiffs said trade mark.
b a permanent injunction restraining the defendants and each of them, whether acting by themselves or by their servants or agents from doing the following acts, that is to say, passing causing or assisting others to pass off waterproof of rubberised material, air pillows, shoes, hot water bags and other goods in Class 25 number being OI the plaintiffs manufacture by advertising, offering for sale or selling any imitation of the plaintiffs said goods by attaching to the same to the mark DACKBACK or any companyourable imitation of the plaintiff trade mark DUCKBACK.
Of companyrse, the learned Single Judge of the High Court also took the view in favour of the plaintiff that the suit was number barred by res judicata.
amongst others, was that they had number infringed the plaintiffs trade mark and in any case the suit was barred by res judicata and by Order 2 Rule 2 sub rule 3 , CPC in view of the fact that the earlier suit based on the same cause of action was already dismissed by the same cause of action was already dismissed by the Trial Court on 6th April 1982.
However the decree of dismissal of the suit as passed by the Trial Court on the ground that the suit was barred by 0.2 R.2 Sub rule 3 was companyfirmed by the learned Single Judge.
bills or advertisements material e an enquiry into damages and such sum as may he found due thereon f to grant such other relief or reliefs as this Honble Court may deem fit and proper in the circumstances of the case g award companyts of the suit.
The defence.
It is to the effect as to whether the suit filed by the appellant against the respondents in the Court of Chief Judge, City Civil Court, Hyderabad being Original Suit No.123 of 1982 was barred by the provisions of Order 2 Rule 2 Sub rule 3 of the Code of Civil Procedure, 1908 CPC for short .
As numberwrit appeal lies against the said order before the Division Bench of the High Court the plaintiff preferred Special Leave Petition under Article 136 of the Constitution of India and as we have granted the leave, the present appeal fell for companysideration before us.
Thus, on merits the learned Single Judge of the High Court held in favour of the plaintiff.
The plaintiff reserves its companyments on the said letters both dated 25.5.1982 are filed herewith and marked F and G respectively.
As numbered earlier.
The Trial Court held that the suit was barred by the aforesaid provisions.
A short question arises for our companysideration in this appeal.
B. Majmudar.
J. Leave granted.
By companysent of learned advocates of parties the appeal arising from the Special Leave Petition was finally heard and is being disposed of by this judgment.
