NILGIRI DAIRY FARM v. S. A. RATHNASABHAPTHY — 1975 DIGILAW 25 (KAR)

NESARGI, J. ( 1 ) THESE two appeals are directed against the common judgment and decree dismissing the suits O. S. Nos. 51/1965 and 52/1965, on the file of the II Addl. District Judge, Bangalore. The plaintiff in the suits is the Nilgiri Dairy Farm, a registered partnership firm, No. 71-72, Brigade Road, Civil Station, Bangalore, the defendant in O. S. No. 51/1955 is S. A. Rathnasabhapathy. The two defendants in O. S. No. 52/1965 are (l)S. Armuga Mudaliar, son of Sellappa Mudaliar, and (2) S. A. Kandaswamy, son of Defendant-1. ( 2 ) AS the questions of law and facts in the two suits were found to be common, the learned II Addl. District Judge, framed common issues and disposed of the two suits together by a common judgment. ( 3 ) IT is undisputed that the plaintiff firm consists of partners who are father and sons. The father is one Muthuswamy Mudaliar. He is the eldest brother of S. Armugam Mudaliar Defendant-1 in O. S. No. 52/1965. Defendant-2 in O. S. No. 52/1965 is the eldest son of S. Armugam Mudaliar and the defendant S. A. Rathnasabhapathy in O. S. No. 51/1965 is the second son of s. Armugam Mudaliar. ( 4 ) THESE two suits are actions for passing off. ( 5 ) THE sum and substance of the plaintiff's case against the three defendants may be narrated briefiy as follows : muthuswamy Mudaliar established the 'nilgiri Dairy Farm' in Coonoor in 1905. He was dealing in dairy products, such as, milk, butter, cream, ghee, cheese etc. The shop flourished. There was partition between himself and his brother Shanmugam Mudaliar and Armugam Mudaliar in the year 1928. He went to Ooty and established a similar business under the same name. He nourished there also. He registered the trade name and the trade mark in 1936 in regard to butter 'crown Brand' with the Madras Chamber of Commerce showing the name of his establishment as 'rudder Range, Ooty', as per the original of Ext. P-18 which is a photostat copy. By the year 1939, he started the same business in Bangalore at the above narrated address in Brigade Road. The name of the establishment continued to be the same, viz. , 'niligri Dairy farm. While at Coonoor and Ooty, Muthuswamy Mudaliar had originated the trade mark Nilgiris'. P-18 which is a photostat copy. By the year 1939, he started the same business in Bangalore at the above narrated address in Brigade Road. The name of the establishment continued to be the same, viz. , 'niligri Dairy farm. While at Coonoor and Ooty, Muthuswamy Mudaliar had originated the trade mark Nilgiris'. His trade was in the trade name 'nilgiri Dairy Farm' under the trade mark 'nilgiris' all through. After establishing the business' in Brigade Road in Bangalore, he continued to use his trade name and trade mark as above. Later he started manufacturing bakery and confectionary products such as, bread, biscuits, cakes etc. , and selling the same in wholesale and retail. All the products manufactured by this establishment in Brigade road at Bangalore, acquired good sound reputation and the sales increased year by year. The business at Coonoor which was being run by Armugam mudaliar started collapsing and was closed ultimately, some time prior to 1948. Armugam Mudaliar and his sons, the other two defendants lost almost all their properties and gave up this business. By 1952, S. A. Rathnasabhapathy came over to Bangalore and started a small shop under the name and style 'rathnam dairy Farm' in Seppings Road. He ran it for some time, but closed it having sustained loss. He sought work in the plaintiff's shop. He was taken up as an apprentice. He worked there for some time and and gave up. ( 6 ) ON 25-3-1957, Muthuswamy Mudaliar and his sons constituted themselves into a registered partnership firm as described in the cause title of the plaints. They continued 'their business under the trade name 'nilgiri Dairy farm' and the trade mark 'nilgiris'. Round about the year 1960, Rathnasabhapathy opened a shop in Mill Corner, Malleswaram, Bangalore, under the name and style "butter and Ghee Centre". He started dealing in bread, butter, milk, cheese, cakes, etc. The plaintiff used to supply his goods as and when ordered by Rathnasabhapathy and Rathnasabhapathy used to sell them as an agent. Rathnasabhapathy used to secure his supplies from other sources also. In 1965, Armugam Mudaliar and his son Kandaswamy came to Bangalore and settled in Sreerampuram. They opened two shops one in Sreerampuram and the other in Serpentine Road, Kumarapark, Bangalore, under the name and style 'murugan Dairy Farm'. Rathnasabhapathy used to secure his supplies from other sources also. In 1965, Armugam Mudaliar and his son Kandaswamy came to Bangalore and settled in Sreerampuram. They opened two shops one in Sreerampuram and the other in Serpentine Road, Kumarapark, Bangalore, under the name and style 'murugan Dairy Farm'. A few days before the suits, the three defendants commenced selling their products in wrappers, on which, the trade name and trade: mark of the plaintiff, was imprinted by means of a rubber stamp. They also introduced the trade name 'nilgiri Dairy Farm' on the name boards at the three shops. Their products were far inferior to the products of the plaintiff. The defendants did these acts to pass off their inferior products as those of the plaintiff for their own benefit on finding, that the products of the plaintiff were in great demand and had acquired good reputation. The customers of the plaintiff, who purchased their requirements, from these shops under the belief that they were of the plaintiff's firm, were deceived. Some of such persons complained to the plaintiff that the quality of their products had deteriorated. These complaints made the plaintiff enquire into the matter. Such enquiry brought to light the deception practised by the defendants. The plaintiff, therefore, issued a public notice as per Ext. P-74 in a widely circulated english news paper 'deccan Herald' dated 22-11-1965 bringing out these factors to the notice of the defendants and the public at large. The defendants continued to engage themselves in these deceptive actions of theirs. ( 7 ) IT is on the above stated averments that the plaintiff prayed for a decree : (i) for an order of perpetual injunction prohibiting the defendants, their servants or agents or workmen from using their trade name 'nilgiri Dairy farm, and/or the trade name or mark, viz. ( 7 ) IT is on the above stated averments that the plaintiff prayed for a decree : (i) for an order of perpetual injunction prohibiting the defendants, their servants or agents or workmen from using their trade name 'nilgiri Dairy farm, and/or the trade name or mark, viz. , 'nilgiris' in any manner or means directly or indirectly in respect of butter, ghee, coffee powder, bread, biscuits, cakes, milk and other dairy and confectionery products and/or selling or exposing for sale any of the above products or goods in wrappers or labels or cartons containing the plaintiff's trade name or trade mark or both or by any colourable imitation of the name of the trade and the trade mark and/or the trade name or trade mark or to represent or sell the goods of the defendants as the goods of the plaintiff; (ii) for a mandatory injunction directing the defendants, their servants or agents or workmen to remove the name board containing the trade name of the plaintiff and/or the trade mark 'nilgiris' of the plaintiff and further directing the defendants to destory and deliver up the infringing labels, wrappers and other papers, cartons and books containing trade name and/or marks of the plaintiff and (iii) directing the defendant Rathnasabhapathy to pay a sun of Rs. 2,000/- and also defendants S. Armuga Mudaliar and S. A. Kandaswamy to pay a sum of Rs. 2,000/- as damages to the plaintiffs. The plaintiff also as asked for a decree directing the defendants to render an account of all their dealings of business in all the three places and pay costs of the suits. ( 8 ) IT is appropriate to mention at this stage that during the trial of the suits, the plaintiff gave up the relief in regard to the damages. The plaintiff secured an interim order in regard to furnishing of accounts in Court and that order is still in force pending these appeals. ( 9 ) RATHNASABHAPATHY has filed a separate written statement in O. S. No. 51/1965. He has at the same time, adopted the written statement of Armuga mudaliar and Kandaswamy filed in O. S. No. 52/1965. The plaintiff secured an interim order in regard to furnishing of accounts in Court and that order is still in force pending these appeals. ( 9 ) RATHNASABHAPATHY has filed a separate written statement in O. S. No. 51/1965. He has at the same time, adopted the written statement of Armuga mudaliar and Kandaswamy filed in O. S. No. 52/1965. ( 10 ) THE common defence of the defendants may be summarised as follows:-The trade name 'nilgiri Dairy Farm and the trade mark 'nilgiris' was evolved by Armuga Mudaliar in the year 1905 and he started the business in dairy products in Coonoor. At that time, Muthuswamy Mudaliar was working as a postman on a monthly salary of Rs 10/. As he was not able to maintain himself and the members of his family, he asked for assistance of his youngest brother Armuga Mudaliar. Armuga Mudaliar took pity on him and took him into the business. By about the year 1923, he thought of providing a separate establishment at Ooty for Muthuswamy Mudaliar. He, therefore, financed muthuswamy Mudaliar to start a similar business having the same name and mark in Ooty, while he himself continued to run his establishment in Coonoor. That is how Muthuswamy Mudaliar settled in Ooty and commenced trading under the name and style "nilgiri Dairy Farm" and the mark "nilgiris". The two establishments ran simultaneously. Armuga Mudaliar had business connections with establishments at Bangalore and was supplying his products to those establishments. He was also supplying his products to establishments in Wellington, Ooty and other places. In the year 1939, Muthuswamy Mudaliar gave up his business in Ooty and came to Bangalore. There, he started 'nilgiri dairy Stores' in partnership with one K. Raman Gownder. That partnership was broken after a short while. By about the year 1939, Armuga Mudaliar started a branch of his establishment in Ceylon and flourished there also. He was running the shops at Coonoor and Ceylon simultaneously. He had to close the. business in Ceylon due to the advent of the Second World War. By about the year 1950, his business in Coonocr suffered because of exodus of the European population from that area and he opened a branch under the same trade name at Mysore and sold his products under the same trade mark. Ho continued to run his establishments in Coonoor and Mysore till 1965. By about the year 1950, his business in Coonocr suffered because of exodus of the European population from that area and he opened a branch under the same trade name at Mysore and sold his products under the same trade mark. Ho continued to run his establishments in Coonoor and Mysore till 1965. In 1965, he came over to Bangalore and opened two shops one in Sreerampuram and the other in serpentine Road, Kumarapark and commenced trading under the same trade name and trade mark. It is their contention that the plaintiff has plagiarised their trade name and their trade mark and in any view of the matter they have been all along the concurrent users of the trade name and the trade mark. Therefore, the plaintiff cannot claim exclusive proprietary right in the trade name and the trade mark. They have also contended that 'nilgiri Dairv Farm cannot be regarded as a trade name and 'nilgiris' as a trade mark because 'nilsiri' is a geographical term representing Nilgiri District and 'dairy Farm' is a descriptive term describing dairv business. Lastly they have contended that the trade name and trade mark that they are using as described by the plaintiff in his plaints are not at all similar to the ones used by the plaintiff as there are dissimilarities, which are quite apparent. ( 11 ) IN addition to the above common defence, the defence of Rathnasabhapathy is that he started the shop under the name and style 'ratnam Dairy farm', on his own as his father had not blessed him. He, therefore, did not use the trade name 'nilgiri Dairy Farm' and trade mark 'nilgi'ris' evolved by his father at that time. By 1960 itself, his father blessed him and gave Rs. 2,000/- and then he commenced using the said trade name and trade mark evolved by his father. The plaintiff very well knew about his using the trade name and trade mark right from that time and acquiesced in such use. In view of this also, the suits have to be dismissed. ( 12 ) THE following issues were framed by the Court below: (1) Have the plaintiffs been using their name and mark since 1905 ? (2) Have the defendants in O. S. 52/65 been using the name and mark since 1905 ? In view of this also, the suits have to be dismissed. ( 12 ) THE following issues were framed by the Court below: (1) Have the plaintiffs been using their name and mark since 1905 ? (2) Have the defendants in O. S. 52/65 been using the name and mark since 1905 ? (3) Have the plaintiff's mark and name acquired distinctiveness and are their trade marks within the meaning of the Indian Trade and Merchandise marks Act ? (4) Has the plaintiff an exclusive right to use of the name and mark ? (5) Have the defendants an independent and concurrent right to use the said mark and name ? (6) Have the defendants infringed or attempted to infringe or passed off or attempted to pass off their goods as and for those of plaintiffs ? (7) Have the defendants in O. S. . 52/65 never traded in Bangalore prior to the filing of the suit in the goods of the plaintiff using the name and mark ? (8) Has the defendant in O. S. . 51/65 never been trading in Bangalore in similar goods to those of the plaintiff using the mark 'nilgiri' or 'nilgiri's since 1952 ? (9) Did the cause of action arise to the plaintiff on 22-11-1965 only ? (10) Has any damage been caused to the Plaintiff by the use of the defendants of the name and mark or to the extent claimed by the plaintiff ? (11) Is the plaintiff disentitled to any relief or to challenge the right of the defendants to use the name and mark by reason of laches, acquiescence, or delay and estoppel ? (12) Is not the use of the name and mark by defendants a bona fide use by them ? (13) To what reliefs are the parties entitled ? ( 13 ) THE learned II Addl. District Judge has accepted all the defences of the defendants. ( 14 ) THE findings of the learned II Addl. District Judge, broadly stated are as follows :-Defendant Armugam Mudaliar originated the trade name 'nilgiri dairy Farm' and the trade mark 'nilgiris' in 1905 and started the business in coonoor. He set up Muthuswamy Mudaliar in Ooty, round about the year 1923 and Muthuswamy Mudaliar ran the business there under the same trade name and trade mark. District Judge, broadly stated are as follows :-Defendant Armugam Mudaliar originated the trade name 'nilgiri dairy Farm' and the trade mark 'nilgiris' in 1905 and started the business in coonoor. He set up Muthuswamy Mudaliar in Ooty, round about the year 1923 and Muthuswamy Mudaliar ran the business there under the same trade name and trade mark. Therefore, the proprietary right belonged to Armugam Mudaliar and not to the plaintiff and the plaintiff is guilty of plagiarising. The name 'nilgiri Dairy Farm' consists of a geographical term and a descriptive term of business, viz. , 'dairy Farm'. The mark 'nilgiris' is also a geographical name because 'nilgiri' is a geographical District. In order to claim that 'nilgiri Dairy farm' is a trade name and 'nilgiris' is a trade mark, the degree of distinctiveness will have to be very high and the plaintiffs have failed to establish such degree of distinctiveness for the use of the trade name and the trade mark. In any view of the matter, Armugam Mudaliar and his sons the two other defendants have got concurrent right, if not exclusive right to use the trade name and the trade mark because Armugam Mudaliar continued to use the same in Coonoor till 1965 and Rathnasabhapathy the defendant, used it in Bangalore right from 1960 onwards in regard to the shop at Mill Corner, Malleswaram and right from 1960, Armugam Mudaliar was connected with this business of defendant rathnasabhapathy in the shop at Mill Corner, Malleswaram. The fact that Rathnasabhapathy used the trade name and the trade mark in Bangalore right from 1960 and Armugam Mudaliar was associated with that was known to the plaintiff and the plaintiff did not raise any objection 'till the issuance of the notice Exhibit p-74 in Deccan Herald dated 22-11-1965. Hence the plaintiff had acquiesced in such use by the defendants. ( 15 ) THE gist of a passing off action is that a person has no right to pass off his goods as the goods of somebody else. An action for passing off is thus a generalised action and is enforceable in respect of registered as well as unregistered trade marks. One of the main questions would be whether the defendant's mark is identical. with or shows deceptive resemblance to the plaintiff's mark. An action for passing off is thus a generalised action and is enforceable in respect of registered as well as unregistered trade marks. One of the main questions would be whether the defendant's mark is identical. with or shows deceptive resemblance to the plaintiff's mark. It is to be decided whether the mark used by the defendants on their goods is likely to deceive the customers into buying the defendants' goods as if they were the plaintiff's goods, because, the principle is that nobody is enti'tled to represent his goods as the goods of somebody else. This principle is solely based on deception and in order to succeed, deception, or a likelihood of deception, must be established. The issue in matters of passing off can be expressed as follows : Would the user of the defendants either the actual user proved in evidence or the propsed user conceded for the purposes of action, be likely to lead persons, either members of the trade or of the public, to suppose that the goods so sold were the product of the plaintiffs or that the business concerned in their production was the plaintiff's or was associated with the plaintiff's business ? ( 16 ) IT is well settled that the identity of the plaintiff need not be known, to the public in order to entitle him to an action for passing off. An action for passing off will lie where the public accepts the goods as the manufacture of another person other than the seller, though they do not know that other person by name at all. ( 17 ) THE above narrated principles concerned in an action for passing off have been narrated by the learned II Addl. District Judge With reference to various decisions of foreign Courts and commentaries of learned authors on the subject, quite correctly. It is to be seen whether he has, as contended by the learned Counsel for the plaintiff applied the said principles to the facts and circumstances of the case. ( 18 ) WE have already pointed out that the learned II Addl. District Judge has concluded that the trade name and trade mark in question, cannot at all be in law regarded as 'trade name and trade mark because of the geographical name 'nilgiri' and the descriptive term of business 'dairy Farm'. ( 18 ) WE have already pointed out that the learned II Addl. District Judge has concluded that the trade name and trade mark in question, cannot at all be in law regarded as 'trade name and trade mark because of the geographical name 'nilgiri' and the descriptive term of business 'dairy Farm'. ( 19 ) THERE can be no doubt that 'nilgiri' is a geographical name because there exists a District known as 'nilgiri District' in which, the Nilgiri Hills are situated. There can also be no doubt that 'dairy Farm' is description of a business. It is on this basis that the defendants contended that the plaintiff cannot have monopoly in regard to such a trade name or such a trade mark. The law on this point is stated by Fletcher Moulton L. J. in Randall Ltd v. Bradley and son (1907)RPC 773, 779, as follows :"if a person chooses to trade under a name which is highly nonspecific which consists of simple words in common use in the general language of the people, he must take the consequences. For instance, if a person who is going to trade in leather calls himself "the Leather company", he has no right to expect that his neighbours will abstain from indicating the business in which they engage by proper descriptive titles, even though such titles make use of the word 'leather'. This will result in the first user acquiring an unfair monopoly of a wholly descriptive term as his business name. " ( 20 ) IT is well established that where the name of a shop or business premises of a plaintiff has acquired a valuable reputation the Court will restrain the unauthorised use of that name in a manner calculated to decetive the public, and thereby cause damage to 'the plaintiff. It is stated in Halsbury's Laws of england, 7th Edition, Vol. 38, page 662 para 1024 as follows : "the Courts in general are unwilling that a manufacturer should get a monopoly of a local name as a trade name for goods, particularly, where the articles sold are the natural product of the locality. . . . . . . . . . . . . . . Generally speaking, the right to use of a name denoting locality of origin passes with the land from which the product comes or on which the business is carried on. . . . . . . . . . . . . . . Generally speaking, the right to use of a name denoting locality of origin passes with the land from which the product comes or on which the business is carried on. " further in para 1025, it is stated as follows :"where the name under which the plaintiff trades is a descriptive one, the Court is always reluctant to interfere even when the defendant has taken a name very closely resembling that of the plaintiff. Nevertheless if the plaintiff can show that the name though composed of descriptive elements, in fact, distinguishes his firm or "company, the Court restrains, the improper use of the name so closely resembling it as to be calculated to deceive,"there is undisputed evidence adduced by both sides in these cases that the milk used by them to manufacture dairy products comes from Coimbatore District and not from Nilgiri District. It cannot at all be said that the ingredients concerned in the manufacture of confectionary, cakes and bread come from nilgiri District. Hence the trial Court is wrong in applying the principle. ( 21 ) APART from the above, it is seen from the pleadings that there does not appear to be serious dispute in regard to the fact that the name 'nilgiri Dairy farm' had become a trade name to the extent necessary to maintain an action, cor passing-off. It is to be remembered 'that the defendants themselves have contended that Armugam Mudaliar originated the name and mark and he became the proprietor of the same and the same were of his exclusive ownership. It is only as an alternative defence that the defendants have contended in this manner to claim that the plaintiff should be non-suited. While adumbrating this defence, armugam Mudaliar has in his written statement illustrated by stating that several traders in Bangalore use the word 'nilgiri' while trading such as, 'nilgiri traders', Nilgiri Coffee Depot" etc. ( 22 ) IT cannot be forgotten thai what is important is that rights are limited to particular goods or business associated with the name or mark. The plaintiff cannot be permitted to complain against the use of the name 'nilgiri' or 'nilgiris' by other traders manufacturing some other goods with which he is not concerned. The learned II Addl. ( 22 ) IT cannot be forgotten thai what is important is that rights are limited to particular goods or business associated with the name or mark. The plaintiff cannot be permitted to complain against the use of the name 'nilgiri' or 'nilgiris' by other traders manufacturing some other goods with which he is not concerned. The learned II Addl. District Judge has totally ignored all these aspects and has, been simply carried away by the fact that 'nilgiri' is a geographical name of a district and 'dairy Farm' is description of a business. He ought to have borne in mind as to in relation to what products the trade name and the trade mark have been used. ( 23 ) UNDER the facts and circumstances of these cases, the remaining questions are interlinked. Hence we proceed to deal with them collectively. It is undisputed that these were originated in the year 1905 in Coonoor and in 1923 Muthuswamy mudaliar started using the same in Ooty. It is also undisputed that Armugam mudaliar used the same so far as his business in Coonoor was concerned till about a few days prior to 1948. It is also undisputed that in or about the year 1939, muthuswamy Mudaliar opened his shop in Brigade Road, Bangalore, and commenced using the same name and the mark. There is no dispute that later, when muthuswamy Mudaliar established the business in Brigade Road at Bangalore he introduced bakery products and confectionary and commenced using the same name and mark in regard to those products also. ( 24 ) ON behalf of the plaintiff, Muthuswamy Mudaliar, his son M. Chenniappan, partner and Managing Director of the firm and 24 witnesses have been examined. Considerable documentary evidence has also been adduced. On behalf of the defendants, Armugam Mudaliar, his son Rathnasabhapathy, defendant in O. S. No. 51/1965 and five witnesses have been examined. Documentary evidence also has been adduced. ( 25 ) THE plaintiff has not produced any document pertaining to the period prior to 1936. On the point that Muthuswamy Mudaliar originated the trade name and trade mark and started the business at Coonoor, there is only the evidence of Muthuswamy Mudaliar. Documentary evidence also has been adduced. ( 25 ) THE plaintiff has not produced any document pertaining to the period prior to 1936. On the point that Muthuswamy Mudaliar originated the trade name and trade mark and started the business at Coonoor, there is only the evidence of Muthuswamy Mudaliar. The only evidence adduced by the defendants in proof of Armugam Mudaliar having originated the trade name and the trade mark consists of the statements of Armugam Mudaliar, D. W. 1 Doraiswamy and D. W. 3 Kalianna Mudaliar. ( 26 ) MUTHUSWAMY Mudaliar has stated in his evidence that he started the dairy business under the trade name and the trade mark in Coonoor in 1905. The few ancestral properties that the family possessed were partitioned in 1923 amongst the brothers as per the partition deed produced in the case and thereafter, he shifted to Ooty and commenced this dairy business there. He has, of course, further on stated that he developed the business there, registered the trade name and trade mark in regard to butter 'crown Brand' as per the original of Ext. P-18 and in 1939, he shifted it to Brigade Road, Bangalore. Further portion of the evidence will be adverted to later on in the course of tha judgment as it pertains to the remaining aspects. ( 27 ) THIS brings us to the evidence of Armugam Mudaliar. We may at the outset state that the trial Court has not analysed the evidence of this witness and as a matter of fact, of any of the witnesses examined on behalf of the defendants. It has, after narrating the evidence of all the witnesses examined on behalf of the defendants merely observed, that many of the witnesses being old men, it has no hesitation to place reliance on their evidence. The same standard has not been applied to the evidence of the witnesses examined on behalf of the plaintiff are also old men. It has analysed the evidence of each one of the witnesses examined on behalf of the plaintiff and read in between the lines to draw inferences which are untenable, on the face of it as will be shown by us in the course of this judgment. Why it has not applied the same yard-stick to the evidence of the witnesses examined on behalf of the defendants is not available in the judgment. Why it has not applied the same yard-stick to the evidence of the witnesses examined on behalf of the defendants is not available in the judgment. Shri. S. K. Venkataranga Iyengar, the learned advocate appearing on behalf of the plaintiff rightly commented that the learned ii Addl. Distriot Judge has applied one standard in appreciating the evidence of the witnesses examined on behalf of the plaintiff and another standard, while appreciating the evidence of the witnesses examined for the defendants. ( 28 ) THE conclusions that emerge from the aforesaid discussion are that the establishment of Annugam Mudaliar at Coonoor ran under the name 'nilgiri dairy Farm' till about 1946-47 and thereafter, it could not be run properly and hence it was shifted to Wellington market. There also, it could not be run properly and ultimately by 1948, Armugam Mudaliar left for his village Moratupalyam, leaving Kandaswamy to salvage. Kandaswamy found it difficult even to sell 5 Ibs. of butter per day in Coonoor. The case of the defendants that they opened a shop under the same name in Mysore, is but a make believe affair. The defendants have failed to establish that it was Armugam Mudaliar who had originated the name and mark in question and who had established the dairy business in Coonoor in 1905. They never used the name and mark in question in bangalore till about November, 1965. Their attempt to show that it was in 1960 that the name and mark were being used by them in Malleswaram shop, has failed miserably. ( 29 ) IT is therefore, plain that after closing their business in Coonoor, the defendants and particularly, Armugam Mudaliar and Kandaswamy started such a business in Vadakkupputhupalyam, under the name and style 'sri Murugan dairy Farm' by about the year 1962 and then on coming over to Bangalore in 1965 and settling in Sreeramapuram, started the business under the same name and style and continued to run it in that manner at least uptill 12-10-1965, the date of Ex. P-49. The conclusion that emerges is that the case of the defendants that they started 'nilgiri Dairy Farm' in Malleswaram in Bangalore in 1960 and that on coming over to Bangalore in 1965 and settling in Sreeramapuram, they commenced business under the trade name and mark in question, is false. P-49. The conclusion that emerges is that the case of the defendants that they started 'nilgiri Dairy Farm' in Malleswaram in Bangalore in 1960 and that on coming over to Bangalore in 1965 and settling in Sreeramapuram, they commenced business under the trade name and mark in question, is false. These conclusions have every bearing on the question of the defence of concurrent user put forward by the defendants. It is established that by 1948 itself, the defendants gave up trading under the name and mark in question and by 1962, commenced trading under the name and style Sri Muragan Dairy Farm' in vadakkupputhupalyam and thereafter commenced trading in Bangalore under the very name and style by 1965 and continued to do so till October, 1965. They have clearly given up user of the name and mark in question right from 1948 till at least 1965, because, they could not continue to run their business under the name and mark in question. The case of the plaintiff that it was a few days prior to the commencement of these actions that the defendants started using the name and mark in question, is probabilised. It is hence seen that it was a few days prior to the commencement of these actions that the defendants revived their user of the name and mark in question in regard to their products in Bangalore. It is in the light of these conclusive findings that it is to be seen whether 'they are entitled to succeed in their defence on the principle of concurrent user. ( 30 ) IN Daniel and Arter v. White house (1898)1 ch. 685. it is held: where there has been a concurrent user of a trade name by 'a' and 'b', but the user thereof by 'b' has practically ceased for some years, and 'a' has in the meantime acquired "a large sale for his goods and a reputation in the market under the trade name, so that the name has become associated solely with the goods of 'a, 'b' may not afterwards revive the use of the name in his business in such a way as to pass off his goods as those of 'a this principle aptly applies to these cases. Therefore, the question would be whether the plaintiff has, in this connection, succeeded in establishing that the plaintiff firm had acquired large sale for its goods and a reputation in the market under 'the name and mark in question, so that the name and mark in question had become associated solely with the plaintiff's goods. ( 31 ) SHRI B. P. Holla, argued that the case of the plaintiff that the defendants and particularly Annugam Mudaliar and Kandaswamy Mudaliar had run their dairy business under the name and style 'murugan Dairy Farm ought not to be taken into consideration as such a case has not been made out in the plaints, but has been made out for the first time in the replies filed to the written statements. We do not see any force in this contention. The plaints contain all the facts necessary to base actions for passing off. When the written statements disclosed that the defendants maintained that they had been using the trade name and mark in question continuously from 1923 till 1965 and, therefore, their user was protected as they were concurrent users of the trade name and trade mark, it is clear that this is one of the defences set up by the defendants. The burden was on them to sustain this defence. The plaintiff was entitled to adduce evidence in the nature of rebuttal evidence on the defendants making an attempt to discharge this burden. That shows that, legally, the plaintiff was entitled to reserve this right to adduce rebuttal evidence on this particular issue and then for the first time adduce such evidence pertaining to the defendants' trading under the name and style 'murugan Dairy Farm'. Hence there is nothing wrong in the plaintiff having made out this case in the reply statements, and adduced evidence in this regard, though not by way of rebuttal evidence. The character of the evidence remains the same. ( 32 ) IT cannot at all be disputed that Muthuswamy Mudaliar secured registration on 17-2-1936 as per the original of Ex. P-18 in Madras Chamber of Commerce. The learned II Addl. District Judge has reasoned and that is also the argument of Sri Holla that what was registered under Exf. P-18 is only 'crown Brand and not the trade name 'nilgiri Dairy Farm'. On looking into the evidence of P. W. 16 Ramakrishna and Ext. P-18 in Madras Chamber of Commerce. The learned II Addl. District Judge has reasoned and that is also the argument of Sri Holla that what was registered under Exf. P-18 is only 'crown Brand and not the trade name 'nilgiri Dairy Farm'. On looking into the evidence of P. W. 16 Ramakrishna and Ext. P-18, we have no hesitation in observing that the reasoning of the trial Court is based on mis-reading of the evidence. P. W. 16 has sworn that the registration of the mark is as depicted in the original of Ext. P-18. The mark is found on a carton. That carton as seen from the photostat copy, viz. , Ext. P-18 shows the Crown in the centre of a circle with the words 'crown' above and 'butter' below on two sides of the carton. But on two other sides of the carton there is another circle around this portion and in that circle appear the name 'nilgiri Dairy Farm, Ootacamund'. What is evident from this and the evidence of P. W. 16 is that the crown brand butter manufactured by 'nilgiri Dairy Farm', Ootacamund, had been registered. That shows that the name 'nilgiri Dairy Farm', which was the trade name used by Muthuswamy Mudaliar in connection with his dairy business was also registered. This is an act of ownership of the trade name and the mark on the part of Muthuswamy Mudaliar. It is not at all the evidence of Armugam mudaliar that he, at any time, got any name or mark registered pertaining to his business in Coonoor. It is undisputed that Muthuswamy Mudaliar continued to trade in Ootacamund under this name till he shifted his business to Brigades road in 1939. This shows that right from 1923 uptill 1939, Muthuswamy mudaliar did this act of ownership in relation to the trade name 'nilgiri Dairy farm' and the trade mark 'crown Brand'. The defendants have contended that muthuswamy Mudaliar, on shifting to Bangalore in 1939, entered into partnership with one K. Raman Gownder and started a shop under the name and style 'nilgiri Dairy Stores', but did not use the trade name and mark in question. They have not adduced any evidence in support of this contention. Neither annugam Mudaliar nor Rathnasabhapathy has stated anything about this in their evidence. This part of their case has remained in their written statements only. They have not adduced any evidence in support of this contention. Neither annugam Mudaliar nor Rathnasabhapathy has stated anything about this in their evidence. This part of their case has remained in their written statements only. On the other hand there is the evidence of Muthuswamy Mudaliar and chenniappan that on shifting their business from Ooty to Bangalore, the establishment was started under the trade name 'nilgiri Dairy Farm' and their products were marketed under the said trade name and the trade mark 'nilgiris'. That evidence has remained uncontroverted as there is no cross-examination directed on this aspect. Other witnesses also have sworn to this aspect. It is undisputed that right from 1939 ownards, the trade name and trade mark are associated with the business of the plaintiff. It is hence seen that Muthuswamy mudaliar has exercised the acts of ownership in regard to the trade name and the trade mark in question continuously right from 1923 onwards without interruption. He has never changed the trade name and the trade mark. These consistent acts of ownership go a long way in showing that Muthuswamy mudaliar must have been the person who originated the 'trade name and mark. It is undisputed that the trade name and mark were originated in 1905. It, therefore, follows that Muthuswamy Mudaliar originated the trade name and mark in question in 1905. Therefore, the reasoning of the trial Court that the plaintiff has failed in establishing that Muthuswamy Mudaliar originated the trade name and mark in 1905 cannot be accepted. The contention of Shri Holla that even if for the sake of argument it is presumed that the defendants have failed to establish that Armugam Mudaliar had originated the trade name and mark in 1905, such failure would not be of any avail to the plaintiff because the burden is on the plaintiff to establish the same and he has failed to establish the same, cannot, therefore, be accepted. ( 33 ) IN order to establish that the dairy and Bakery products, confectionary and coffee produced by the plaintiff have acquired large sales and good reputation in the market under the trade name and the mark, the plaintiff has examined many witnesses. ( 34 ) P. W. 15 is Thangavelu related to the partners of the plaintiff firm and the defendants. He is a dealer in butter at Erode. ( 34 ) P. W. 15 is Thangavelu related to the partners of the plaintiff firm and the defendants. He is a dealer in butter at Erode. He has sworn that he supplied butter to Rathnasabhapathy in the year 1964 and in that connection, he had received the letter which is at Ext. P-15 from him. He has also sworn that he had received the letter Ext. P-17 from Rathnasabhapathy in connection with the price of the butter. Ext. P-15 is dated 23-11-1964 and Ext. P-17 is dated 26-4-1965. We are not concerned much with the contents of these letters. Rubber stamping reading as "the BUTTER and GHEE CENTRE (GUARANTEED pure) MILL CORNER,. . . . . . . . appears on both these letters. It is seen therefrom that in 1964 even in April, 1965, Rathnasabhapathy was not using the trade name in question in his rubber stamp. This is a circumstance which goes, along with the other circumstances already narrated and discussed in some of the preceding paragraphs, to show that the case of the defendants that they had started using the trade name in question in Mill Corner shop by 1960 itself, cannot be accepted. ( 35 ) IT is our considered opinion that the above material satisfactorily establishes that Dairy products bakery products and confectionary manufactured and marketed by the plaintiff firm under the trade name and trade mark in question had acquired good reputation in the market and that the trade name and the trade mark had become associated solely with the goods of the plaintiff. ( 36 ) WE have, in the preceding paragraphs, appreciated as is required to be done while dealing with regular first appeals, the evidence adduced by the plaintiff and the defendants. It is seen therefrom that the learned II Addl. District Judge has, for reasons, which are on the face of themselves not sound and untenable, discarded the evidence adduced on behalf of the plaintiff and accepted the evidence of defendants Armugam Mudaliar and Rathnasabhapathy and their witnesses, without giving any reasons but by simply observing that he has no heskation in accepting their evidence. This is nothing short of the learned II Addl. This is nothing short of the learned II Addl. District Judge saying : whether there be any reasons or not, i accept the evidence of Armugam Mudaliar and Rathnasabhapathy and their witnesses and whether there be good reasons or not, I reject the evidence adduced for the plaintiff. Such an approach to evidence is evidently arbitrary. ( 37 ) THE evidence of P. W. 23 and P. W. 17 and the material available in the certified accounts Exts. P-19 to P-21 and P-23 (a) conclusively establish that during the period between 1939 and 1965, the plaintiff had acquired large sales for the goods manufactured and marketed by the plaintiff. ( 38 ) IN view of the above, we hold that all that is required to be established by the plaintiff as laid down in Danial and Arter v. White house, has been satisfactorily established and further that the conclusion of the learned II Addl. District Judge that the plaintiff had acquiesced in the defendants' user of the trade name and trade mark in question cannot be upheld. ( 39 ) COMING to the question, whether there are any dissimilarities in the names and marks used by the plaintiff and the defendants, we find from the written statement of Rathnasabhapathy that he has pointed out the differences as follows : "as a matter of fact, the defendant has made it clear that his firm is an entirely different firm from that of the plaintiff. In the name board itself, he has inscribed the words "butter AND GHEE CENTRE" in very prominent characters in the centre of the board below is the name 'the nilgiri Dairy Farm'. He has also added below the word 'pioneers' and the words 'registered with Swan Brand' in 1905. " it is also pointed out in the evidence of the defendants that the word 'coonoor' appears in the name board prominently displaying the words 'nilgiri Dairy Farm' at the shops in Sreeramapuram and Serpentine Road. Nextly it has been suggested in the cross-examination of P. W. 13 that the name of the Proprietor also appears on these two name boards. In regard to the remaining aspectsthere is no dispute that they are the same. Nextly it has been suggested in the cross-examination of P. W. 13 that the name of the Proprietor also appears on these two name boards. In regard to the remaining aspectsthere is no dispute that they are the same. ( 40 ) WE have held that the dairy products, bakery products confectionary and coffee produced and marketed by the plaintiff firm have acquired good reputation, large sales and have been associated by the public at large with the plaintiff firm. They are known as products of 'nilgiri Dairy Farm' and sold under the trade mark 'nilgiris'. They are known as 'nilgiris butter'. 'nilgiris bread 'nilgiris confectionary' and 'nilgiri Coffee'. ( 41 ) IN Montgomery v. Thompson (1891) 8 RPC 361 the facts stated briefly were as follows : the plaintiffs and their predecessors in business were brewers at Stone, a town of about 7,000 inhabitants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Their brewery was called Stone Brewery, and their ales were known to the public as "stone Ales". The defendant, a Liverpool publican, began to build a brewery at Stone, and to use the words Stone Ales' there, and at his public houses in liverpool. The plaintiffs brought an action against the defendant to restrain him from using the term 'stone Ales', and moved for an injunction, whereupon the defendant moved to rectify the register by adding to the said trade marks a disclaimer of "stone" or by striking out such word from such trade marks, or for such further or other order as might seem to be just. Interim injunction as prayed for by the plaintiffs was granted and made perpetual. That order was ultimately confirmed by the House of Lords also. In the House of Lords, Lord nerschell, Lord Watson, Lord Macnaghten, Lord Morris and Lord Hannen, were present lord Herschell held that the ales manufactured by the plaintiffs had gained a high reputation, and, although in advertising them the name of 'jule and Co. That order was ultimately confirmed by the House of Lords also. In the House of Lords, Lord nerschell, Lord Watson, Lord Macnaghten, Lord Morris and Lord Hannen, were present lord Herschell held that the ales manufactured by the plaintiffs had gained a high reputation, and, although in advertising them the name of 'jule and Co. , (which was the name of the plaintiffs) under which the brewing business was carried on, had generally been associated with the words 'stone Ale', yet, it was beyond dispute that the plaintiff's ales had become known to the market, and to the public, under the terms 'stone Ales' or 'stone Ale', the latter being exclusively applied to a particular quality of beer, anvone asking for 'stone Ale', or Stone ales' would desire to be supplied, and expect to be supplied, with the ale manufactured by the plaintiffs. In such circumstances, the order of injunction was to be upheld. Lord Watson held that it was not disputed that the ales brewed and sold by the plaintiffs firm had acquired considerable reputation, and had for many years past been known to the wholesale and retail trades, as well as their customers, by the distinctive appellation of 'stone Ales' and 'stone Ale', the latter term being exculsively applied to a particular and superior quality of liquor. A trader who bought ale under one or other of those designations relied upon its having been manufactured by the plaintiffs and even those customers who did not know the manufacturer or the place of manufacture, expected to get the same ale which they had been in use to purchase, namely, the plaintiffs'. Lord Macnaghten held that the defendant had a perfect right as everybody has to set up a brewery in Stone. Ale brewed in Stone is Stone ale for all that the Court could say or do. He was entitled to call his ale what it really was, and to sell it under its true name if he took care that his customers were not induced to believe that it was of the plaintiffs' manufacture. In this view of the matter, the order of injunction had to be upheld. Lord Morris held that every person had a right to the honest use of the words 'stone Ale' as otherwise the plaintiffs would derive the advantage of a trade mark though not entitled to it as 'stone' was a village. In this view of the matter, the order of injunction had to be upheld. Lord Morris held that every person had a right to the honest use of the words 'stone Ale' as otherwise the plaintiffs would derive the advantage of a trade mark though not entitled to it as 'stone' was a village. But if the defendant used the words in a fraudulent combination so as to confound his goods with the plaintiffs' and thus palm them off on the public, that would be met with deprivation of the right to use the words at all. He further observed that he should have desired that the injunction was not so wide and stringent as it was, but he was not prepared, under the circumstances of the case, to dissent from the order passed. Lord Hannen has also dealt with the aspect of the geographical use of the name, viz. , Stone'. This is how, it has been expressed by his Lordship :"the Appeal to this House is based on the contention that the word 'stone' in connection with ale or beer, is merely used by the Appellant in a geographical sense, as indicating that the ale or beer manufactured at that place, and that anyone is entitled to use it in that sense, provided he does not use it so as to induce the belief that his goods are the goods of manufacturers previously established at Stone. The principle contended for by the Appellant may be admitted as correct, but in considering what may induce purchasers to believe that the appellant's goods are the goods of the Respondents, all the circumstances of the case must be taken into account. Here the evidence has satisfied mr. Justice Chitty and the Court of Appeal, and, I think, ought to satisfy your Lordships, that the Respondents' goods had acquired by long usage the name of 'stone Ale' and 'stone Ales' that that name does not merely convey the idea that the beer was manufactured at stone, but that it was ale of the Respondents' manufacture. The appellant is undoubtedly entitled to brew ale at Stone, and to indicate that it was manufactured there, but there are various means of stating that fact without using the name which has now become the designation of the respondents' ale. The appellant is undoubtedly entitled to brew ale at Stone, and to indicate that it was manufactured there, but there are various means of stating that fact without using the name which has now become the designation of the respondents' ale. " ( 42 ) THE plaintiff has positively 3stablished that its customers purchased butter from the shops of the defendants as it was marketed by the defendants as the product of 'nilgiri Dairy Farm' and found that they had been deceived because the butter was of inferior quality. We have already shown that neither butler nor bakery products nor confectionary involved in these cases are the products of Nilgiri or Nilgiri District. In the above narrated case, the ale in question, which had been proved both by the plaintiffs and the defendant had been manufactured in the village Stone. Even then the plaintiffs were granted an order of injunction against the defendant. The principle enunciated and accepted in the above narranted case, aptly applies to these cases also. ( 43 ) IN the Clock Ld v. The Clock House, House Hotel Ld. (1935) 52 RPC 386. the facts stated briefly were as follows : the Plaintiff Company, The Clock Ld. , was incorporated on May 15, 1929. The plaintiff Company opened an establishment known as a road-house on land adjoining the Welwyn By-pass Road near Weiwyn in the county of Hertford. A prominent feature of that establishment was a clock on the top of a gabled building. That establishment was not licensed to sell intoxicating liquor nor did it provide patrons with lodging, but it provided them with meals and offered them facilities for bathing, tennis and golf. The establishment acquired a reputation and was known to many people as 'the CLOCK' and the name 'the CLOCK' had always appeared in conspicuous letters on the plaintiffs' premises. The Defendant Company, The Clock House Hotel, Ld. , was incorporated on October, 6, 1934. In November, 1934, the Defendant Company opened an hotel on land adjoining the Barnet By-Pass Road at a point five miles south of the point occupied by the Plaintiffs' road-house, at New Hatfield in the county of Hertford. A prominent feature of that hotel was a tower carrying a clock above which was written the word "hotel" and below which were written in large letters the words "clock House". A prominent feature of that hotel was a tower carrying a clock above which was written the word "hotel" and below which were written in large letters the words "clock House". That Hotel was licensed to sell intoxicating liquors and did provide patrons with lodging. It did not offer facilities for bathing, tennis or golf, but provided meals. The plaintiffs commenced an action to restrain the Defendants from carrying on business under the name 'hotel Clock House', or any other name calculated to cause confusion with and damage to their business. In spite of the various contentions including dissimilarities in the names and the establishments and the amenities provided by the defendants, it was held that the plaintiff had acquired a reputation in the name 'clock' in connection with their road-house and that in the locality the words "the Clock" had come to mean the plaintiffs' premises and that the use of the words "hotel Clock house" by the Defendants constituted a real possibility of confusion which might result in actual damage to the plaintiffs. An injunction was granted but was limited to restraining the defendants from using the words complained of on their premises. ( 44 ) WHAT is to be noted is that the dissimilarities pointed out by the defendants in that case were held to be not dissimilarities which could be taken i'nto consideration in such cases. The principle underlying this decision meets the contentions of the defendants jn this regard. ( 45 ) IN Ruston and Hornby Ltd. v. Zamindara Engineering Co. AIR 1970 SC. 1649 . , the action was tor infringement on the ground that the defendant's trade mark was identical with the plaintiff's mark. The Supreme Court held that where the alleged infringement consists of using not the exact mark on the Register, but something similar to it, the test of infringement was the same as an action for passing off and that the test as to likelihood of confusion or deception arising from similarity of marks was the same both in infringment and passing-off actions. In the said case, the plaintiff's registered mark was 'ruston' in respect of diesel internal combustion engines. Defendants used the words Rustam india' on similar engines manufactured by it. The suit was dismissed. In appeal, the High Court held that there was deceptive resemblance between 'ruston' and 'rustam' and constituted infringement of the plaintiff's trade mark 'ruston. In the said case, the plaintiff's registered mark was 'ruston' in respect of diesel internal combustion engines. Defendants used the words Rustam india' on similar engines manufactured by it. The suit was dismissed. In appeal, the High Court held that there was deceptive resemblance between 'ruston' and 'rustam' and constituted infringement of the plaintiff's trade mark 'ruston. The High Court, however, held that the suffix 'india' after 'rustam' was a sufficient warning to purchasers and that the defendant could be allowed to use that combination. The Supreme Court held that the fact the word 'india' was added to defendant's trade mark was of no consequence and the plaintiff was entitled to succeed in its action for infringement of trade mark. In view of the principle in this decision, the dissimilarities depended upon by the defendants, cannot also be of any consequence. ( 46 ) IN Teju Singh v. Shanta Devi AIR 1973 AP. 51 . , it is laid down as follows :"if the defendant's trade mark is identical with or deceptively similar to the plaintiff's trade mark, then there is an attempt at passing off goods as the goods of another person. Procf of actual deceipt or confusion is not obviously required and it will be sufficient for the plaintiff to succeed if he succeeds in proving the likelihood of deceipt and confusion. "if the trade mark used by the defendant is identical with or deceptively similar to the name or initials of a person carrying on business in connection with the goods of the same description, then it becomes false trade description. The identity or deceptive similarity may occur either in seeking or hearing. It need not necessarily be a visual impression as to identity or deceptive similarity. If to the hearing of a customer an impression of identity or deceptive similarity is created, it should logically follow that there is an attempted passing off. Therefore, it cannot be said that unless the identity or deceptive similarity strikes the eye of the customer, there is no attempted passing off. "by mere addition of one word here or deletion of another word from there would not really alter the situation. Therefore, it cannot be said that unless the identity or deceptive similarity strikes the eye of the customer, there is no attempted passing off. "by mere addition of one word here or deletion of another word from there would not really alter the situation. If on a broad comparison of the totality of the names or marks it is found out that the similarity is likely to cause deception or confusion in the minds of persons accustomed to the particular goods then it is an attempt at passing off. "where in a passing off action it has been established that the plaintiff's shop had been opened much earlier than the defendant's shop, that there, are no other shops in the locality which use trade names similar to those of the plaintiff and the defendant and that there is definite scope for confusion of the defendant's shop with that of the plaintiff's shop which had been started much earlier the Court is fully justified in issuing the necessary injunction against the defendant. " ( 47 ) IN the above cited case, the only facts that need be stated is that both the plaintiff and the defendant were Electric Dry Cleaners of clothes. The plaintiff was trading under the name and style "one Day Electric Dry Cleaners" and the defendant started his trade a few yards away from the plaintiff's place of business on the same road under the name and style "only one day Electric dry Cleaners". That is why the action was instituted by the plaintiff. It is plain that the principle enunciated in the above decisions applies with all the force to these cases also in view of the established facts and circumstances. ( 48 ) FOR the foregoing reasons, we are clearly of opinion that these appeals are entitled to succeed and the plaintiff is entitled to the reliefs sought for. ( 49 ) IN these appeals, the plaintiff has filed I. As. in the two suits seeking permission to amend the plaints so as to bring out the facts pertaining to the registration of the plaintiff's trade name and trade mark in 1968 and seek reliefs on the basis of infringement of the same. I. As. were opposed mainly on the ground that causes of action would be changed, nature of the suits would be changed and other defences would be open to the defendants. I. As. were opposed mainly on the ground that causes of action would be changed, nature of the suits would be changed and other defences would be open to the defendants. In view of the conclusions we have already reached in these actions for passing off, we hold that these I. As. need not be considered. In regard to the infringement of trade name and trade mark of the plaintiff the plaintiff is always at liberty to take separate action. ( 50 ) THE plaintiff has also filed I. As. seeking permission to introduce a few more photographs to establish that long after the institution of these actions, the defendants have made themselves bold to change their sign-boards so completely as to make them appear to be the sign-boards of the plaintiff firm. But the conclusions we have already reached in these actions make it unnecessary for the plaintiff to introduce those photographs and hence these I. As. also need not be considered. ( 51 ) IN view of the foregoing reasons, we are clearly of opinion that these appeals are to succeed and the plaintiff is entitled to decrees for : (a) a perpetual injunction restraining the defendants and/or their servants, agents or workmen from using the plaintiff's trade name 'nilgiri Dairy farm' and/or plaintiff's trade mark 'nilgiris' in any manner or means directly or indirectly in respect of butter, ghee, coffee powder, bread, biscuits, cakes, milk and other dairy and confectionary products and/ or selling or exposing for sale any of the above products or goods in wrappers or labels or cartons containing the said trade name and/or trade mark from representing or selling their goods as the goods of the plaintiff ; and (b) a mandatory injunction directing the defendants and/or their servants, agents or workmen to remove the name board containing the plaintiff's trade name 'nilgiri Dairy Farm' and/or plaintiff's trade mark Nilgiris and further directing the defendants to deliver up for destruction to the court all infringing labels, wrappers and other papers, cartons and books containing the said trade name and/or trade mark of the plaintiff and/or to destroy all labels, wrappers and other papers, cartons and books containing the said trade name and/or trade mark of the plaintiff and report to the Court. ( 52 ) THESE appeals are allowed with costs and common judgment and decrees passed by the Second Additional District Judge, Bangalore in O. S. No. 51 of 1965 and O. S. No. 52 of 1965 are set aside, The suits are decreed with costs for the reliefs enumerated above. ( 53 ) IN view of the plaintiff having given up the claim for damages in both the suits, the order directing the defendants to furnish accounts pending these appeals, is vacated. --- *** --- .