PREM SINGH Vs. CEEAM AUTO INDUSTRIES

JUDGEMENT

(1.) This is plaintiff's application under Order 39 Rule 1 & 2 read with section 151 of the Civil Procedure Code, who has brought a suit seeking is liancs of permanent injunction against the defendant, asserting to be a registered proprietor of trade mark "MEXPAL" inrespect to goods of car polishes, and also having a copyright in a specific design, get-up, colour scheme etc. in relation to tin boxes in which the said goods are marketed and sold, alleging infringement of the said copyright on part of the defendants, and seeking a restraint order prohibiting them from manufacturing, selling or otherwise dealing in car polishes in the tin boxes identical or deceptively similar to those of the plaintiff.

(2.) The area of controversy in the present case is very narrow, being restricted to the copyright in the design, colour scheme. shape and get-up of the tin-boxes, inasmuch as the trade mark of defendant's goods is wholly different for the reason that whereas the plaintiff's trade mark is "MEXPAL", that of the defendant's is "FARISHTA". The plaintiff claims user since the year 1979. and registration of the copyright since 1980, when he got both his trade mark as well as copyright in the design of the tin boxes registered, The allegation is that the defendant is also in the same trade, and earlier in the year 1983 it came to plaintiff's notice that a concern known as M/s. M.K. Aggarwal Auto Industries was using plaintiff's trade mark, namely, "MEXPAL" and marketing the same in containers or tin boxes identical to those of the plaintiff, and for that reason a suit for perpetual injunction for an action for infringement of the trade mark, copyright and pas ing off was brought. It is pleaded that an interim injunction order was issued by the Court in that suit which was confirmed subsequently by order dated 23rd October 1984: which suit was still pending, as the defendant there after having agreed to a consent decree being passed, that he would retrain from infringing plaintiffs trade mark 'MEXPAL, resiled subsequently.

(3.) It is alleged that the plaintiff has come to know now that the defendant has adopted a different trade mark namely "FARISHTA", but persists in marketing his goods of car polishes in tin boxes, which are identical or deceptively similar to those of the plaintiff, inasmuch as the entire colour scheme, get up, lay-out, writing style and arrangement of words of the tix boxes as employed by the plaintiff, has been adopted by the defendant. The plaintiff asserting to be the originator and author of artistic work, consisting of the design, shape, get-up and colour scheme of his tin boxes, which he claims to have become distinctive of his goods, besides being a registered proprietor of the copyright. vide registration No. A-26895180, which registration is still subsisting. valid, and effective throughout India contends that the defendant has no right to use similar tin boxes for marketing his car polishes, even under a different trade mark, and that activities of the defendant were tantamount to infringement of the copyright of the plaintiff in the said tin boxes.