HINDUSTAN PENCILS PRIVATE LIMITED Vs. UNIVERSAL TRADING COMPANY

JUDGEMENT

(1.) Appellants are aggrieved against judgment dated 19th October, 1984 passed by learned Single Judge in CO. 2/83. This appeal is directed against the aforesaid judgment. CO.2/83 was filed by the appellants under Section 107 read with Sections 46 and 56 of Trade and Merchandise Act, 1958 (hereinafter referred to as the Act, for short). In that petition appellants had prayed that Trade Mark No. 324345 under which respondents had got registered a trade mark in respect of mathematical instruments and water colour boxes (which are goods falling in class 16) should be removed and/or expunged from the register of trade mark and that in any case the following goods should be specifically expunged ' from the registration, namely, "compass, dividers, set square, Dee, protractor and foot rule". Learned .Single Judge did not agree with the petitioners/appellants and dismissed the aforesaid CO. 2/83 filed by the petitioners. Before we deal with the merits of these appeals it would be appropriate to hurriedly scan through the relevant facts in FAO(OS) No. 6 of 1985.

(2.) The appellants are carrying on business as manufacturers of pencils and other stationary articles since the year 1957. They are the registered proprietor of the trade marks "NATRAJ" with the device of Natraj registered as per the details given below:-

(3.) The appellants are also the proprietors of the copyright registration Nos. A-25427/79 dated 17th October, 1979, A-25426/79, A-25680/79, A-25681/79, A-28337/80, A-33176/81 and A-31998/81 in which the word NATRAJ and the device of Natraj are prominently depicted. As per appellants version they are selling goods worth crores of rupees annually and spending huge amounts of money on advertisement. Various registrations of the appellants under the Act would reveal that appellants have been using the word "Natraj" alongwith device of "Natraj" in respect of various kinds of pens, pencils, sharpener, erasers, etc Admittedly, these registrations do not specifically cover mathematical instruments and water colour boxes which are the items/subject matter of present litigation. The respondent claiming itself to be the manufacturer of pencils got registered trade mark no. 324345 in Class 16 in respect of mathematical instruments and water colour boxes. Application for this purpose was made before the Registrar on 6th April, 1977 claiming user as from 1st January, 1974. This application was opposed T)y the appellants and on the opposition filed by the appellants proceedings thereon had started by the Registrar of Trade Mark. However, the appellants opposition was treated as abandoned vide order dated 27th February, 1981 passed by Registrar of Trade Mark. There being no other opposition certificate of registration granted to the respondent on 7th March, 1981. It is this registration, cancellation of which was sought by the petitioners by filing CO.2/83, as would be seen later. Coming back to the events as they occur chronologically, after obtaining the aforesaid registration respondent filed suit against the appellants seeking injunction restraining the appellants from using the trade mark and device in respect of boxes containing mathematical instruments in the tin containers bearing thereon the word "Natraj". Respondent pleaded that mark of these instruments infringed respondent's trade mark No. 324345 dated 7th March, 1981. Respondent was granted interim injunction and appellants were restrained from marketing mathematical instrument boxes with the trade mark and device of "Natraj". Order was passed by learned Single Judge of this Court (per D.R.Khanna, J). After arguments interim injunction was made absolute by order dated 20th December, 1982. Appellants at this stage filed CO.2/83 seeking cancellation of the aforesaid trade mark in favour of the respondent. Appellant also filed Special Leave Petition to Supreme Court against injunction order dated 20th December, 1982 passed by this Court. Supreme Court dismissed the Special Leave Petition and. confirmed the order of this Court. However, it directed expeditious hearing of the rectification petition filed by the petitioner. The battle lines having been drawn and matter reaching back to this Court in the form of CO.2/83, learned Single Judge proceeded to hear the same and dismissed the said petition by the impugned judgment dated 19th October, 1984.