SUSHIL VASUDEV Vs. KWALITY FROZEN FOODS PRIVATE LIMITED

JUDGEMENT

(1.) the appellant preferred this miscellaneous first appeal from the order, dated 27th september, 1989 passed on i.a. nos. I and iii in o.s. no. 443 of 1989 by the viii additional city civil judge, Bangalore city, vacating ex pane temporary injunction passed in the case.

(2.) facts in brief are:-the plaintiff-appellant has been carrying on business in the manufacture and sale of ice-cream and allied products in Bangalore under the trade name "kwality ice-cream company" and under the trade mark inter alia consisting of the stylished word 'kwality' and the device of sea-bird perching on waves and certain other get up, design and colour-scheme, eversince he purchased the going concern from the legal heirs of one k.d. kapur, with All its goodwill, assets and liabilities, trademark and All other appurtenances, including the leasehold right of the business premises no. 19, kumara krupa road, bangalore-1, under a sale deed, dated 19-8-1969. He has been selling his ice-cream in the State of Karnataka and Kerala exclusively under the said trade mark and name. He has large and ever increasing sales of his product under the mark and his gross turnover for the year 1988-89 exceed Rs. 49 lakhs has popularised his business and mark by wide and varied advertisements; and as a result, the trade name and mark are associated with his product only and none else. He has also applied for registration of bis trade mark before the trade mark registry under application no. 383328 in class 30 which is pending. That product has trade name and mark. He filed a suit before the city civil court for passing off against one kwality ice-creams company (madras) ltd., which commenced business in Bangalore using the trade mark 'kwality' and he obtained temporary injunction and restrained user of the offending mark in o.s. no. 3553 of 1981, which is pending and the injunction is still in force. It is averred that on 18-1-1989 he noticed an advertisement in the 'deccan herald' of the same date wherein one 'kwality frozen foods pvt. Ltd., bombay' (the defendants) is proposing to distribute 'kwality' ice-cream not manufactured or sold by him, to children and adults at the west end hotel on 21st and 22nd january, 1989. The advertisement and the proposed activities referred to therein will undoubtedly result in passing of ice-cream which is not manufactured or sold by the plaintiff as his ice-cream and thereby cause deception and confusion of the public. Unless the defendants are at once restrained by means of an order of temporary injunction pending disposal of this suit, the defendants will use the offending trade name and mark 'kwality' thereby causing irreparable damage to plaintiff's goodwill and reputation. The plaintiff is entitled to the exclusive use of the said trade mark comprising the stylished words 'kwality'. The defendants have never used this mark in this State of Karnataka and Kerala particularly in the city of bangalore. Along with the suit, the plaintiff also filed an application for grant of temporary injunction.

(3.) the application was resisted by the defendant and they filed la. Iii forvacating the ad-interim order of temporary injunction granted by the court. It is the case of the defendants that they are having office at Bombay and do not have any office at bangalore, which fact is well known to the plaintiff. The plaintiff's application is entirely misconceived and is not maintainable. No injunction against the registered proprietors who are using their registered trade marks can be granted under the law, besides the plaintiff has kept back full information from the court and did not state that the defendants are using their registered trade marks. It is further stated that the plaintiff has also failed to disclose that the defendants and their predecessors in title are using the trade mark 'kwality exactly' in the same style for the last above five decades, inspite of which the plaintiff has made his claim to be the proprietor thereof. In fact, the plaintiff has tried to keep back the vital information from the court. It is further alleged by the defendants that the plaintiff is well aware that the defendants and their predecessor in interest are using 'kwality' trade mark for the last about five decades. They are the registered proprietors of trade mark nos. 178269,255297 and 255298. The plaintiff has suppressed before this court the fact that a suit is pending against him in respect of the very subject matter and hence, is guilty of suppression of facts, and that another suit filed against him amongst others at the district and sessions court, at mysore now directed to be transferred to Bangalore by virtue of the order of this court is also substantially the very material in respect of which the suit now has been filed by him. It is further stated, that no cause of action has arisen for the maintainability of the suit. It is also alleged, that the suit is filed against the plaintiff with regard to the infringement of their registered trade marks referred to above, is still pending in the court. The matter in dispute in the present suit as well as in the earlier suit no. 1 of 1983 is directly and substantially the same. As such, the defendant prays for dismissal of the present application filed by the plaintiff under order 39, Rules 1, 2 and 3 read with section 151, cpc.