NOVELTY EMPORIUM Vs. NOVELTY CREATION PRIVATE LIMITED

JUDGEMENT

(1.) M/s.Novelty Emporium (hereinafter described as "the plaintiff") has filed the present suit for perpetual injunction, restraining the defendant (M/s.Novelty Creation Private Limited) from manufacturing, selling offering for sale, advertising, directly and indirectly dealing in wedding sarees, Banaras, Bangalore and South sarees, Embroided sarees, Lehanga Chunni, Punjabi suit dupatta etc. under the corporate name "NOVELTY" of the company or any other company name with prefix and suffix of the word "NOVELTY". Besides that a claim has also been made for rendition of accounts. During the pendency of the said suit, the plaintiff seeks ad interim injunction by virtue of I.A.No.8647/98. The defendant has filed an application under Order XXXIX Rule 4 of the Code of Civil Procedure i.e. I.A.No.8962/98. By this common order,both these interim applications are proposed to be disposed of.

(2.) . The facts alleged are that the plaintiff is engaged in the business of manufacturing, exporting and acting as a dealer in wedding sarees and other clothes, stitched clothes like Punjabi Suit Dupatta etc. It is carrying on the business under the name and style of Novelty Emporium. It has adopted this name in the year 1960 and has been carrying on the business under the said name uninterruptedly since then. The plaintiff has acquired statutory right to use the trade name and plaintiff's corporate name NOVELTY in the trading style has become distinctive and associated with the aforesaid goods. It has acquired handsome reputation and goodwill in the market and thus, the plaintiff claims that it has acquired exclusive right to use the corporate name "NOVELTY". The defendant is alleged to be engaged in the business of marketing of wedding sarees and Banaras, Bangalore and South sarees, embroidered sarees and Lehanga chunni and Punjabi suit dupatta etc. It has recently started the business. The defendant, with dishonest and malafide intention adopted the corporate name NOVELTY, identical and deceptively similar to the plaintiff's corporate name Novelty. The adoption of name identical and deceptively similar to that of the corporate name by the defendant, is with an ulterior motive to cause confusion and deception in the mind of purchasing public at large. It is claimed that the touts of the defendant are always standing in front of down stairs of the plaintiff's showroom and insist the unwarry and innocent purchasers that Novelty Creation Private Limited is another showroom of the plaintiff, where huge stocks are kept and purchasing public is likely to wonder that defendant is connected in one or the other manner with the plaintiff. It is asserted that the defendant has no right to use the trading name NOVELTY and hence the present suit with an application for ad interim injunction.

(3.) . The defendant has contested the said suit as well as the application. In the written statement filed, it has been asserted that the plaintiff has not mentioned that it is a registered partnership firm and, therefore, the petition as such as well as the suit is not maintainable. Plea has also been raised that the plaintiff deliberately and with malafide intention tried to confuse the matter by not making it clear whether its trade name is "NOVELTY" or "Novelty Emporium". The word "NOVELTY" is a generic in nature meaning quality of being novel or something new. The plaintiff has nowhere claimed any right over a particular artistic or colourful way of writing the word NOVELTY. The goods of the plaintiff can not pass off as that of the defendant. The defendant's claim is that everything is absolutely dis-similar including the/trade name of the plaintiff as well as the defendant. Furthermore, it is contended that the word Novelty has been extensively used by many other dealers as a constituent part of their trade name, both prior or after use of the said word by the plaintiff. It is alleged that the word Novelty is not associated with the goods of the plaintiff or that of the defendant. It was pointed that there are many other shops, which are using the word Novelty Silk Emporium, Novelty Silk and Sarees, Novelty Garments and Novelty Sarees in different parts of the city. In this process, defendant claims that there is no ground for the plaintiff to seek the ad interim injunction.