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.”
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