WINNER MOULDERS Vs. MOHAN BROTHERS

JUDGEMENT

(1.) The facts of the case that have given rise to this application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, briefly stated, are these. M/s. Winner Moulders, plaintiff, and M/s. Mohan Brothers, defendants, are both engaged in the business of Manufacture and sale of Safety Razors and are operating in the same area, namely, Industrial Area, Wazipur, Delhi. Plaintiff's case is that they started manufacturing Safety Razors in the year 1960 and it was in the year 1969 that they picked up using trade-mark '333' and they have been using the same since then without any break and have acquired proprietory rights therein on account of registration under nos. 305, 389 of date May 13, 1975 in Class 8 in respect of Safety Razors, Their grievance is that the defendants, who were previously purchasing Safety Razors manufactured by the plaintiff have started manufacturing Safe Rozors themselves and have recently started infringing registered trade-mark of the plaintiff by using mark "333" in regard to their product.

(2.) The short point for consideration is whether there is any infringement of the rights of the plaintiff in this case or not. According to Section 2(1)(J) of the Trade and Merchandise Marks Act, 1958, hereinafter referred to as the Act, 'mark' includes a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof. It cannot, therefore, be gainsaid that "333" is a mark within the meaning of the Act and is the property of the plaintiff in that he is the proprietor of the registered trade-mark '333". According to Section 28 of the Act, registration of a trademark the exclusive right to the use of the name in relation to the goods in respect of which the trade-mark is registered and to obtain relief in respect of infringement of the trade-mark and Section 31 of the Act says that registration of trade-mark shall be prima facie evidence of the validity thereof in legal proceedings. In the circumstances, the plaintiff has a strong prima facie case for issue of interim injunction restraining the defendants from using the numerals "333" in respect of the Safety Razors.

(3.) It is pointed out on behalf of the defendants that the plaintiff has wrongly been registered as proprietor of "333" and that defendants have made a counter claim seeking rectification of the trade-mark. This is hardly a ground for declining the relief to the plaintiff. The next submission of the learned counsel is that the Plaintiff's registered trade-mark is 'Winner' and that he has never used "333" as his trade-mark. It is not possible to accept this contention. The plaintiff is undoubtedly proprietor of registered trademark "Seiko" in respect of Safety Razors. The fact remains that the plaintiff is also the proprietor of registered trade-mark "333" in respect of Safety Razors and, therefore, has a statutory right to use "333" as mark of Safety Razors manufactured by them. It is not possible to accept the contention on behalf of the defendants that "333" is used by the plaintiff to indicate quality of safety razors and not as a trade-make. The issue of injunction, it is said, is discretionary but the discretion has to be exercised in accordance with equity and good conscience. The defendants know that plaintiff has been using "333" as mark in respect of Safety Razors manufactured by them, as they have been purchasing Safety Razors from the plaintiffs. Both the parties are operating in the same locality. Infringement by making use of "333" besides their registered trade-make "Seiko" in respect of Safety Razors is thus Ex facie a delibrate and designed act. The equities are thus against the defendants. There are, thus, good grounds for restraining the defendants from using "333" in respect of safety razors manufactured by them.