Kaviraj Pandit Durga Dutt Sharma vs Navaratna Pharmaceutical ... on 20 October, 1964
At the very outset, we keep it on record that we are quite alive to the
position of law that the scope of investigation in an action for infringement of
registered trademark varies a lot from the one for passing off. As pointed out by a
Bench consisting of three Judges of the Apex Court in the case of Durga Dutta
Sharma Vs. N. P. Laboratories, reported in A.I.R. 1965 SC 980, in the former type
of cases, once it is established that the essential features of the trademark of the
plaintiff has been adopted by the defendant, the fact that the get up, packing and
other writing or marks on the goods or on the packets in which he offers his
goods for sale show marked differences or indicate clearly a trade origin different
from that of the registered proprietor of the mark would be immaterial; whereas
in the case of passing off, the defendant may escape liability if he can show that
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the 'added matters' are sufficient to distinguish his goods from those of the
plaintiffs.