OM PRAKASH GUPTA Vs. PARVEEN KUMAR

JUDGEMENT

(1.) By this order, plaintiff's application (I.A. No. 7665/99) under Order 39 Rules 1 and 2, Civil Procedure Code seeking temporary injunction and defendants application (I.A. No. 8739/99) under Order 39 Rule 4, Civil Procedure Code for vacating the exparte interim injunction granted on 12.8.1999 are being disposed of.

(2.) Plaintiffs has filed a suit for injunction against infringement of trademark, infringement of copyright, and passing off, besides other ancillary reliefs. The case of the plaintiff is that plaintiff is the registered proprietor of the label 'SURAJ CHHAP' registered vide registration No. 287631 dated 24.4.1973 in Class 34 in respect of Scented Chewing Tobacco which has been renewed and a valid mark on the Trademark Register having been last renewed on 24.4.1994. Formerly plaintiffs was a partnership firm doing business in the name of M/s. Prakash Sugandh Bhandar comprising of Om Prakash, Sumer Chand and Promod Kumar as its partners since the year 1973. Subsequently, one of the partner retired and one other expired and now plaintiff is its sole proprietor. It is alleged that the plaintiff has traded extensively under the trade mark "SURAJ CHHAP" for different varieties of tobacco since the year 1973 in several States including, Delhi, Rajasthan, U.P., Gujarat and M.P. and has got good reputation in his products. It is further alleged that plaintiff is also the owner and proprietor of the artistic work in the labels and pouches used for sale of their products which are distinctive, with typical trade dress and unique colour combination. Plaintiff also claims that he has also got common law right for action for passing off in respect of this trademark on account of long and extensive use. It is however, admitted that the plaintiff had stopped the sale of his goods under this trade mark for some time (period of non-user not mentioned). It is further alleged that the defendants used to sell tobacco under trademarks of "PATANGA" and "HARI BIHARI" but have recently started using plaintiff's trademark "SURAJ CHHAP" and copied the design of his pouches knowing fully well plaintiff's reputation in his product in the market. Plaintiff has accordingly filed this suit.

(3.) On his I.A. No. 7665/99 filed along with the suit, an ex parte ad interim injunction was granted on 12.8.1999 restraining the defendants from using the trademark "SURAJ CHHAP" or pouches or labels identical or deceptively similar to those of the plaintiff.