SURYA ROSHNI LTD Vs. METALMAN INDUSTRIES LTD

JUDGEMENT

(1.) IA. 10720/98 is filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as CPC, for short) for ad-interim injunction. The other two Interlocutory Applications are filed by the defendant under Order XXXIX Rule 4 and Order XXXIX Rules 3 and 4, CPC. Both are for vacation of ex-pane injunction. These applications were accordingly heard together and are disposed of by this common Order.

(2.) The main Suit tiled by the plaintiff is for perpetual injunction against the defendant for alleged infringement of trade mark, copyright, passing of and rendition of accounts, etc. The plaintiff is carrying on business of manufacturing and marketing of steel pipes and fittings thereof. Its case is that since 1984 it has been using the distinctive double colour band., - blue, yellow and red on the steel pipes entitled "Prakash Surya". What is claimed is that plaintiff is the first Company in India to bring new and original artistic design of double colour band in respect of "steel pipes and fittings" and the use of "double colours" is a novel attraction and eye-catching to the customers. It has spent huge account in publicising such distinctive double colour band system. It is further submitted that in order to seek statutory protection the plaintiff has applied for its registration on 27th Nov., 1996 claiming user since 1984 and the application is pending before the Registrar, Trade Mark, New Delhi. This work already stands registered under the Copyright Act with Registration No. A- 54370/97. Thus, it has exclusive right to manufacture and sell steel pipes and fittings under the distinctive double colour bands and no other person has right to use the same distinctive colour bands system in respect of steel pipes and fittings. However, in an attempt to take advantage of the unique, reputation and good-will built by the plaintiff with respect to these goods with the aforesaid distinctive double colour band system the defendants have recently started manufacturing and marketing of steel pipes and fittings using identical and/or deceptively similar distinctive double colour band system in blue, red and yellow colours and is marketing the goods under the trade mark "Metalman". It is submitted that the plaintiff has no objection if he defendant sell the product by using the trade mark "Metalman" but it should use single colour band as permissible under IS:1239 of Bureau of Indian Standards Act.

(3.) While issuing summons in the Suit and notice was also issued in IA. 12702/98 on 30th Nov., 1998 returnable on 14th Dec., 1998. On 14th Dec., 1998 fresh notice was issue returnable on 5th Feb., 1999. This notice was received back with the report that the defendant had refused to accept notice. In view thereof, on 5th Feb., 1999 Order was passed to the effect that until further orders the defendants, their servants, distributors, agents, dealers and representatives are restrained from manufacturing, selling, offering for sale or use of double colour bands in respect of steel pipes and fittings. Thereafter, the defendants filed lAs. 12466-67/99 on 15th Feb., 1999 for vacation of injunction order dated 5th Feb., 1999.