Indian Kanoon - Search engine for Indian Law

(1) This Regular First Appeal has been filed by Messrs Atlas Cycle Industries Ltd., plaintiff in Regular Suit No. 18 of 1958, on the file of the Court of the District Judge, Delhi, against the judgment and decree of the said District Judge, dated 27th November, 1961, dismissing the suit. The defendants in the said suit were Hind Cycles Ltd. (respondent 1) and the Registrar of Trade Marks, Bombay (respondent 2).

(2) The appellant (plaintiff) is a company incorporated in 1950 under the Indian Companies Act, 1913, and has its registerd office at Sonepat (Punjab). Respondent (defendant 1) is also a limited Company incorporated under the Indian Companies Act, and it carries on business in the manufacture of cycles and cycle accessories at Bombay. Respondent 2 (defendant 2) is the Registrar of Trade Marks under the Trade Marks Act 1940.

(27) In this connection, it is also necessary to consider the case of the appellant (plaintiff) that its cycles under the trade mark "EASTERN STAR" had acquired a reputation and came to be referred to by the public as "STAR" cycles or "TARA BRAND" cycles. In support of the said contention, the appellant (plaintiff) adduced oral evidence consisting of statements on oath by Sohan Lal Sharma, Rohtak Road, Delhi (P.W.I); Mulakh Raj, Model Town, Delhi (P.W.3); and Hari Nath Mithal, Ambala Cantonment (P.W.4); and the statements of Sadhu Ram, Lucknow; Muni Lal, Bombay, P.Krishna Rao, Ranebennure, Mysore; Puran Chand, Jamshedpur; and Ranchod Dass of Hyderabad, which were got recorded by interrogatories on commission. All of them are business-men dealing with cycles in various places and they all averred that their customers when making a demand for "EASTERN STAR" cycles refer to them as "STAR" cycles. Amrit Lal Khanna, Sonepat (P.W.2); Vir Chand, Madras; and Parma Nand, Nagpur, stated that their customers, while demanding for "EASTERN STAR" cycles, look for the "STAR" mark on the monogram. Salvaraj, Bangalore, stated that their customers while demanding "EASTERN STAR" cycles refer to them as "EASTER STAR" cycles. The learned District Judge declined to accept the statements of the aforesaid witnesses by merely observing that their evidence was not very convincing. He has not, however, given any reason for his view. As already stated, all the aforesaid witnesses are business-men belonging to various places. Nothing has been elicited either in their cross-examination or in their answers to crossinterrogatories served upon them by respondent 1 (defendant 1) to show that they were interested in supporting the appellant (plaintiff). There is nothing on the record which throws any doubt as regards their credibility, and we see no reason for not accepting their statements that their customers refer to the "EASTERN STAR" cycles as "STAR" cycles.

(28) As against that evidence, respondent 1 (defendant 1) examined Virender Kumar, Ambala, as D.W. 1; and got recorded the statements of InderChandGarg, Lucknow; Prem Sagar, Lucknow; Jai Shanker Tandon, Kanpur; Partap Chand, Lucknow; Atar Gopal Nigam, Jabbalpur; Harnam Dass, Lucknow and Umesh Chand Rastogi, Kanpur; byinterrogatories on commission. Virender Kumar stated in examination-in-chief that no customer of his had ever described "EASTERN STAR" cycle as a "STAR" cycle, and that his customers had always demanded the cycle by describing it as "EASTERN STAR" cycle. He however, admitted that illiterate customers look at the monogram on the cycle. He also admitted in cross-examination that he appeared without summons from the Court, and that he had come from Ambala to Delhi to appear as witness at the asking of a representative of respondent 1 (defendant 1) . Inder Chand Garg stated that no purchaser asked for a cycle as "STAR" cycle, but admitted that purchasers mostly looked to the stamp of "EASTERN STAR" Prem Sagar stated that mostly the "Babu" section of the public generally purchase "EASTERN STAR" cycles, but added that it was only the villagers who seldom demand for "STAR" bicycle of Sonepat. There is thus an admission by him to the extent that villagers who want to purchase "EASTERN STAR" cycles refer to them as "STAR" bicycles of Sonepat. He also admitted that the premanent feature of the "ROYAL STAR" and the "EASTERN STAR" cycles is the representation of a "STAR" but added that both were individually known by their respective manufacturers. Jai Shanker Tandon also stated that no purchaser asked for a cycle in the name of "STAR" cycle only, and that purchasers in general referred to "EASTERN STAR" cycles as "EASTER STAR" cycles. Pratap Chand, Attar Gopal Nigam and Umesh Chand Rastogi made statements to the same effect. These witnesses examined on behalf of respondent 1 (defendant 1) are also business-men belonging to various places and there is nothing on the record to discredit their statements mentioned above.

(29) There are thus the statements of some business-men dealing in cycles on one side as against the statements of some other business-men dealing in cycles on the other. There are however, certain circumstances in view of which we are inclined to prefer the statements of the witneasses examined on behalf of the appellant (plaintiff). Messrs Janki Dass & Co., the predecessor-in-interest of the appellant (plaintiff) began to import bicycles into India under the trade mark "EASTERN STAR" in 1938. In 1943, Messrs Janki dass & Co. got the two trade marks registered. After the incorporation of the appellant (plaintiff) company in 1950, Messrs Janki Dass & Co. assigned all their rights to the former with effect from 12th July, 1955. Respondent 1 (defendant 1) gave certain particulars in paragraph 13 of its written statement regarding trade marks containing the word "STAR" in respect of cycles. Even according to those particulars, barring one instance of a trade mark "RED STAR" registered on 26th June, 1942, all the other marks containing the word "STAR" were registered, according to the written statement, in and after 1955. Thus for a period of about seventeen years there had been no cycles in the market other than those of Messrs Janki Das & Co. and the appellant (plaintiff) which were being sold with the trade mark containing the word "STAR", and only the "EASTERN STAR" cycles were in the field. It is the case of the appellant (plaintiff) that it. over since its incorporation, sold "EASTERN STAR" cycles on a large scale throughout India, and by about 1956 its turn-over was about a Lakh of bicycles per year. Vishnu Narain Tandon, Law Officer of the appellant (plaintiff) Co: deposed that the appellant (plaintiff) has been manufacturing and selling by the date of his deposition (20th September, 1961) about 1,50,000 cycle annually. The volume of sales during the period 1938 to 1956 and even thereafter, and the A fact that the "EASTERN STAR" cycles were the only cycles in the field in the earlier period render probable the contention of the appellant (plaintiff) that the "EASTERN STAR" cycles had become known as "STAR" cycles. As pointed out earlier, Prem Sagar, a witness examined on behalf of respondent 1 (defendant 1), had to admit that villagers who purchase "EASTERN STAR" cycles demand for them as "STAR" bicycles of Sonepat. In view of all these circumstances, we prefer the statements of the witnesses examined on behalf of the appellant plaintiff, and hold that its cycles under the trade mark "EASTERN STAR" acquired a reputation and came to be popularly referred to as "STAR" cycles. The cycles of respondent 1 (defendant1) were sought to be introduced under the name "ROYAL STAR" only from 1956. In view of our finding that the "EASTERN STAR" cycles came to be popularly referred to as "STAR" cycles, the same has to be taken as another circumstance from which it has to be held that the use of the name "ROYAL STAR" for the cycles of respondent 1 (defendant 1) is very likely to deceive and confuse a purchaser of average intelligence and imperfect memory. Consequently, it has to be held that the word mark of respondent 1 (defendant 1) in question constitutes an infringement of the registered trade mark No.11246 of the appellant (plaintiff).