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f(i).. Whether the plaintiffs have established that if b they are entitled to claim right over the product and mark 'Tiger Balm'?
(ii) Whether the Court below was justified in accepting the evidence available on record to J;

9! come to the conclusion that the plaintiffs have established transborder reputation? [iii] 15 the mark 'Flying Tiger Balm' adopted by the second defendant deceptively similar to mark 'Tiger Balm' and if similar, whether adoption of the mark can be considered honesth ' adoption?

26. Though both the parties W voluminous documents as Exhibits ::'i1'1.:su'pport' oflitsheirr respective cases, while analysing the conté:_:nt.ionsV only -. ' such of those documents are relevant? for the purpose needs reference' more j§artic1il.arly in view of the fact has_"i'n'vlfact referred to all the docunientsexliausitiveivf »..l7.7Ll1'tl'1€l' it is to be clarified at this gage iltself Vth'atA°thle':detailed reference made to the °'oral*-- and documentary evidence will form the basis for A"~tl;1Q"53lf13.:ly~'SlVS conclusion even if any one of it is not spec.ifiCva'll3fV referred once again. l ":27. in view of the findings rendered by the Court in 'below' and the contentions raised herein, based on the «t ,4 materials and evidence noticed, the issue revolves around the question with regard to the fact as to whether the plaintiffs had any business in India during the year 1965 when the defendant started Surat. Even if official sale or manufaCtu'ringjV'riVsVf' notf V' established, whether their reputation and good will. In thatfoontext, vvlietthery got there first alone would matter or as' to 'Whether there was transborder reput4_ati.on.'_V ar1df"in~._that view. is there passing off is an issue oonisideration'; Further in such andin thfeffaets of the instant case if the defendant ._aw_:ar.e' ..---of the reputation and the existence ofaV_:similar".produet with the similar mark, in
ffl of the bottle and as to 9/\%rhether the same can be registered as a mark. In the instant case, though the shape of the bottle as hexagonal is pointed to indicate the getup and the manner of trademark is that of the Tiger' and as issue ., therein is not of relevance. dec.isi;oriii1_'the*r:ase.;of RRAJAGOPAL REDDY AND oriisizis CHANDRASHEKHARAN --(1995{2)rscc'~sV3o) vifas relied on by the learned senior' coti:r1vse'i.'pifor~ the appellant to counter the contention' of :the"learne_da.se'nior counsel for the pieiiiitiife; 'i1i}§§*;"'ti1fie.'j.:i:iai?1§"'i3i"':the plaintiffs is to be considered as-a'\i\fe1ll'i:riow:1 mark as defined in Section 2(zg).of thle"'i'rVad.erna1f1{s'}i\ct (1999). Relying on the said . dec-isiori i't,is contended that in the instant case the the Trademarks Act 1958 would apply and in"that__*Cire1irnstanee, the assignment of the trademark and the goodwill should be as provided under Section ' the said Act, since there is no question of goodwill '""if there is no business. £011 this aspect, as already noticed above, the reputation and the goodwill of the plaintiff has been considered in the background of the facts involved in the present case and also the evidence available with regard to the transborder reputatioirarld also the manner in which the defendjantslpi established their business by ad'o'ptingp_the as such, the right of the plaintiffs not beenfloonsiclpeireld~_ based merely on the defin'1t;on of lltnown if trademark in the newjact.

--V mattsetriri the manner indicted above, the points [i) to (iv) raised Vflabove are answered against the appei1ant/ defseindants. Despite the same, the correctness of the is relief granted by the Court below raised in point [V] requires consideration. With regard to the n'1arl<.V,V_l from the transborder reputation, since the to be deceptively similar and since hone'st'Hadofpt'ion it"

not been established by the injunction granted to resltraliny the" in": thew' manner directed byvthe Couralz-elow is it justifiled. The issue however is as below was justified in 1,00,000/- as damages alnjd.-faithful account of all the using the impugned ..--pay to the plaintiffs such arnount as"rn'ay...be"found due on such account being . V. takens,/,"tThlough bothlthe prayers are made for monetary cl.airns..l'i'nv"the._prayer column and it is also indicated in para 2._8'df:'*'the plaint that additional court fee would be the averments in para--25 of the plaint would i indicate that it had been sought as alternative relief and "as such at the outset both the reliefs could not have