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IP Background

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Though the appellant /plaintiff was favoured on the issue of maintainability his appeal finally was dismissed. On its dismissal the appellate Court observed: “In the case under appeal the evidence on record shows that the appellant’s commodity is whisky, an alcoholic drink, whereas the respondent’s merchandise is blood tonic, a medicinal preparation without any trace of alcohol: The goods are admittedly different in character and class. The appellant whisky is sold by licensed stores only; on the other hand the respondent’s blood tonic is marketed through road-side stalls. The consumers of the respective commodity also belong to different sections of the public. I therefore fail to see how the use of the appellant’s mark by the respondent is likely to deceive or cause confusion to members of public that the goods vended by the respondent are manufactured by or in anyway connected with the appellant.”

As conclusion of this part we might say that according to the provisions of the Code and practices there is an effective measure on infringement of I.P in our country. Other Acts or Laws which are going to be discussed hereinafter are considered to be of help to those measures.

(b) The Specific Relief Act

It also was formerly enacted as India Act No. 1 of 1877 and it’s seemed to be enforceable since 1st May 1877. It was later adopted to introduce in our country. Of all the relieves granted by this Act, relief relating to infringement of I.P is clearly provided in section 54 of Chapter 10 which reads: “When the defendant invades or threatens to invade the Plaintiff’s right to or enjoyment of property, the Court may grant a perpetual injunction.” Further in explanation it states: “For the purpose of this section a trademark is property.” And also in illustration it shows: A improperly uses the trade mark of B. B may obtain an injunction to restrain the user, provided that B’s use of the trade mark is honest.”

Right to interfere or right to sue of a plaintiff (an aggrieved person) in such cases can be obtained by the provision of this Act. Taking an action for obtaining injunction is a suit of civil nature. A plaintiff can claim not only injunction. In the case of Aga Mahmood Vs. Edward Peltzer* , two relieves were claimed, namely, (a) accounts of the clothes bearing the mark complained of which the defendant’s firm had imported; (b) damages, other than that of injunction. Similarly in the case of Sallay Mahomed Hajee Sulaiman and one Vs. S.B. Neogi & Co.21 it was held : “Where a plaintiff succeeds in a trade mark case, he is entitled to claim either the damages he has sustained by reason of the infringement on the part of the defendant or the profits which the defendant has made by his wrongful act. The computation in these two cases is different. If the plaintiff wishes to recover damages he should prove what profit he would have made if the offending article had not been put upon the market, and the best evidence in that behalf is the evidence of any loss of trade the plaintiff has suffered during the period in which the defendant was importing good with the offending mark on them.”

 

* vide. 16.
21 All India Law Reports (Rangoon Series) Vol 10. P. 85.

 

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