ORDER
J.D. Kapoor, J.
1. Plaintiff is a renowned manufacturer and merchant of a large variety of electronic goods under the trademark SONY. The trade mark SONY of the plaintiff has been registered as detailed in para 2 of the plaint. Registration certificates are Ex.P2 to P4. This trademark is registered in 177 countries of the world. Worldover sales of SONY branded goods runs into several millions of US Dollars each year.
2. Despite import restrictions the plaintiff’s specialised electronic equipment including broadcasting equipment and audio and video products under the trademark SONY continue to be sold in India. The plaintiff export to India of SONY branded goods run into several million Yean each year.
3. While scanning the market in February 1992 it was revealed to the plaintiff that the defendants are selling and offering for sale dual cone speakers bearing the trade mark SONY which speakers have no connection with the plaintiff. The plaintiff also purchased SONY branded speakers from the defendants against a cash memo dated 7.2.1992, (Ex.P6). By way of letter dated 22.6.1992, (Ex. P11), the plaintiff called upon the defendants to cease the desist from using the trademark SONY in relation to their goods. The defendants failed to comply with the notice though they sent a reply dated 13.7.1992, Ex. P12. hence the plaintiff filed the instant suit.
4. Section 28 of the Trade and Merchandise Marks Act, 1958 (in short the Act) confers exclusive right to the registered proprietor of the trademark to the use of the trademark in relation of the goods in respect of which the trademark is registered. It also confers rights to obtain relief in respect of the infringement of the trademark in the manner provided by Section 29. The registered trademark is infringed the moment a person who is not a registered proprietor of the trademark or a registered user thereof uses in the course of a trade the said mark which is identical with or deceptively similar to the trademark in relation to any goods in respect of which the trademark is registered. It is not necessary that the mark should be identical in all respects. It is sufficient if the mark has such deceptive similarities which are likely to create a confusion in the mind of unwary purchaser or misleading a purchaser as to the source of the article of its striking or near-striking resemblances. Even the defense that the defendant has distinguished his goods from those of the registered proprietor is not available.
5. However so far as the action for infringement of a trademark is concerned, it is statutory remedy and in order to succeed the plaintiff has to establish its title and exclusive right to use the said trademark. So far as the action for passing off is concerned the aggrieved person should not be a registered proprietor of the trademark. It has only to establish the goodwill, reputation, long, prior and substantial use of the said mark. While in the case of an infringement of a registered trademark the defendant cannot escape the liability but in the action for passing off the existence of element of deceit and false representation is necessary. If the defendant succeeds in establishing that his goods have such distinctions in spite of having some or other kind of similarities that do not originate or soured from the plaintiff’s goods he can escape the liability.
6. However, in the instant case, the identical trademark has been used by the defendant and thus there is a total infringement of the registered trademark of the plaintiff.
7. The plaintiff has successfully established its claim of the trademark and as such the suit is decreed in terms of prayer (a). A decree sheet be prepared accordingly.