Hon'ble Judges/Coram:
Dr. A.S. Anand and S.B. Majmudar

ORDER

1. Leave granted.

2. By consent of learned advocates of parties the appeal arising from the Special Leave Petition was finally heard and is being disposed of by this judgment. A short question arises for our consideration in this appeal. It is to the effect as to whether the suit filed by the appellant against the respondents in the Court of Chief Judge, City civil Court, Hyderabad being Original Suit No. 123 of 1982 was barred by the provisions of Order 2 Rule 2 Sub-rule (3) of the CPC, 1908 (CPC for short). The Trial Court held that the suit was barred by the aforesaid provisions. We will refer to the appellant as plaintiff and the respondents as defendants for the sake of convenience in latter part of this judgment. A learned Single Judge of the High Court of Andhra Pradesh held on merits that the plaintiff had established its case of passing off against the defendants. However the decree of dismissal of the suit as passed by the Trial Court on the ground that the suit was barred by Order 2 Rule 2 Sub-rule (3) was confirmed by the learned Single Judge. As no writ appeal lies against the said order before the Division Bench of the High Court the plaintiff preferred Special Leave Petition under Article 136 of the Constitution of India and as we have granted the leave, the present appeal fell for consideration before us.

3. The case of the Plaintiff is that it is a proprietor of the trade mark bearing the word "Duck Back" which is registered under the Trade and Merchandise Marks Act, 1958 and also the owner of the copyright in the artistic design of the word 'Duck Back' registered under the Copyright Act and that the plaintiff has acquired a good reputation in the Indian market for waterproof goods and rubberised waterproof raincoats. It is the further case of the plaintiff that it markets its products under the registered trade mark 'Duck Back' throughout the country and its product has obtained good reputation and popularity amongst the consumers as 'Dack Back' raincoats. The plaintiff further alleges that it came to know that defendants were manufacturing and marketing similar products under the trade mark 'Dack Back' which phonetically and visually resembled the plaintiffs trade mark resulting in confusion amongst consumers and amounted to passing off of plaintiffs goods as the goods of the defendants. The plaintiff was, therefore, advised to sue the defendants under in the City civil Court, Hyderabad for infringement of registered trade mark 'Duck Back' and it prayed, inter alia, for permanent injunction on that basis. The learned Trial Judge in that suit being Original Suit No. 238 of 1980 which will be styled as the first suit, passed the judgment and decree dated 9th April 1982 and dismissed the same on the ground that there was no infringement of plaintiff s trade mark 'Duck Back' by the defendants who were <........