PURAN CHAND JAIN Vs. SHYAMJI INDUSTRIES

JUDGEMENT

(1.) Since the defendant through this application under Order 39 Rule 4 Civil Procedure Code seeks vacation of ex parte ad interim injunction passed vide order dated 28/4/2000 whereby the defendants were restrained from manufacturing, exporting, selling, offering for sale, advertising, exhibiting directly or indirectly dealing in Gutka, pan masala goods and cognate and allied goods such as in pouch having the same getup, colour combination or any other identical/deceptively similar pouch to the plaintiff's pouch and also restrained from infringing the copyright of the plaintiff in the artistic work titled "MAHAK" registered under No. A-57188/99, the order shall dispose not only the instant application but also the application under Order 39 Rules 1 & 2 Civil Procedure Code as the grant or refusal of one shall decide the fate of the other.

(2.) The short ground on which vacation of stay has been sought is that the plaintiff obtained a stay order on the basis of the registration of trade mark "MAHAK" under no.422322B inclause31 i.e. for Mouth Freshner and not for Gutka whereas the fact remains that the said trade mark was cancelled in the year 1998 prior to the filing of the suit and as such the stay order has been obtained by filing wrong affidavit.

(3.) As is apparent from the impugned order, the plaintiff was afforded the protection in respect of pouch containing the Gutka with regard to its get up, colour combination which is its own artistic work and against any other identical or deceptively similar pouch. As regards the copyright of the plaintiff in the artistic work titled MAHAK, there is no dispute that plaintiff has copyright in his favour by way of copyright registration.