JUDGMENT
K.C. Gupta, J.
1. This revision petition has been directed by the plaintiff M/s National Soap Mills against order dated 8.9.1990 passed by Additional District Judge, Ludhiana, whereby he held that the suit of the petitioner (plaintiff) as far as infringement of the copy right is maintainable but not with regard to the infringement of trade mark.
2. Aggrieved by the said order, the plaintiff has filed the present revision petition.
3. I have heard Shri M.L. Saggar, counsel for the petitioner and carefully gone through the file. However, nobody has put in appearance to address arguments on behalf of the respondents.
4. Briefly stated the facts are that the petitioner firm is a registered owner of the trade mark ‘Raj Soap’. It is having copy right registration No.A-27628/80 dated 2.5.1980. It had been using the trade-mark ‘Raj Soap’ since 1963 and had spent a huge amount for sale promotion of the Raj Soap through various agencies. On account of long standing better sale promotion activity, superior quality, the trade mark ‘Raj Soap’ is enjoying available goodwill, reputation in the market and it has become quite distinctive of the goods of the petitioner firm and none else.
5. In April 1988, the petitioner firm came to know that the respondents (defendants) had started using the trade-mark ‘Raju Soap’ identical to that registered wrapper of the petitioner having similar design, get-up and colour scheme and thereby invaded the valuable rights of the petitioner firm. Immediately, notice was served on the defendants but they did not refrain themselves from infringing its trade-mark and copy right by the trade-mark ‘Raju Soap’. It is further stated that there was a visual and phonetic similarly in the ‘two wrappers one used by the petitioner and the others used by the respondents. The respondents in their written statement had controverted all the allegations and stated that they were selling their own goods having distinct design and get up wrapper.
6. Thus, in the plaint, the petitioner had alleged the infringement of trade-mark as well as copy right as the wrapper of ‘Raj Soap and ‘Raju Soap’ are similar and there is a visual and phonetic similarity in the two wrappers. Further the use of similar trademark ‘Raju Soap’ by the respondents had created deception and confusion in the minds of ultimate purchasers of washing soap, which includes illiterates, children. Dhobies, house-wives etc. It has been stated by the Deihi High Court in Joy Industries v. Nakson Industries, A.I.R. 1992 Delhi 338 that where there is infringement of copy right and trade-mark then single suit relating to two different causes of action filed by plaintiff is maintainable. In the present case, the respondents had been selling goods by infringing the trade-mark and copy right of the plaintiff-firm and the wrapper was alleged to be made similar to the one in which the petitioner had a copy right and which also contains the trade-mark registered in the name of the petitioner firm having Registration No. 254880 in Clause 3. Therefore, in view of the above said authority, single suit is maintainable.
7. Consequently, the revision petition is accepted and the impugned order, being illegal, is set aside and it is held that single suit is maintainable. Now the trial Court is directed to proceed further with the case in accordance with law.