BAGLA AND CO Vs. BAGLA COSMETICS

JUDGEMENT

(1.) By this order I.A. Nos. 10580/97, 1970/99 and I.A. 7460/99 in Suit No. 2296/97 and I.A. 9865/97 in Suit No. 2138/97 shall be disposed off. It is not in dispute that the business of Cosmetics in the style of Bagla & Co. was started by the parties' father, namely, Shri Nanu Mal Bagla as far back as 1925. The father, regretfully has been missing since 1968; his estate has not been pertitioned.

(2.) In Suit No. 2138/97, the plaintiff is stated to be partnership concern of which Shri Naveen Kumar Bagla and Pawan Kumar Bagla, both sons of Jaininder Kumar Bagla, are the partners. It is further averred that the trade name and trade mark 'Bagla Cosmetics' has been in the sole and exclusive use of Shri Jaininder Kumar Bagla, son of late Shri Nanu Mal Bagla since 1975. In support of this contention it is submitted that Shri Jaininder Kumar Bagla had obtained central sales tax registration in 1975 and had also got registered under the Delhi Shops and Establishment Act, 1954. The plaint further discloses that the trade mark and trade name 'Bagla Cosmetics' was first coined, adopted and used since the year 1975 by Mr. Jaininder Kumar Bagla, who retired from the firm in 1996. It is submitted that the mark 'Bagla Cosmetics' is represented in a novel artistic design, get-up and colour combination, the copyright of which vests solely and exclusively with the plaintiff. Registration thereof under the Trade and Merchandise Marks Act, 1958 has also been pleaded. The springboard of the litigation is an advertisement in the Nav Bharat Times dated 30.9.1997 in which the defendant had given a caution notice that it was the proprietor of the trade name'Bagla Cosmetics'.

(3.) In their Written Statement the defendants had pleaded that they are carrying on the business of manufacturing and marketing of nail polish, chemicals and colours to be used in nail polish under various trade marks and trade name 'Bagla & Co.' since 1968. They have challenged that the plaintiffs are not the owners of the impugned trade name/trade mark 'Bagla' with any suffix or prefix. It has been denied that the plaintiffs have been using the trade mark 'Bagla Cosmetics' since 1975 and that they had full knowledge that the defendants were transacting business in the name of 'Bagla & Company'. It has then been stated that the word 'Bagla' was first employed in 1925 when the father of the defendant late Shri Nanu Mal Bagla started using this word in respect of cosmetics as 'Bagla & Company. The defendant, namely, Shri Ganeshi Lal Bagla has pleaded that he was helping in this business since 1960 and when his father disappeared in 1968 he started handling the firm 'Bagla & Company', with the consent of all the family members including the plaintiff.