HINDUSTAN PENCILS LTD Vs. APTUDET INDUSTRIES

JUDGEMENT

(1.) THIS is an application under Order 39 Rules 1 and 2 read with Section 151 CPC on behalf of the plaintiff praying for an interim injunction against the defendant, its agents, servants, employees from interfering, offering or advertising directly or indirectly, dealing in sealing wax, chalks sticks and other goods under the trade mark NATRAJ and device of NATRAJ and any other mark which is deceptively similar to the plaintiff's registered trade mark and device amounting to passing off of the defendants goods or which is the goods or the business of the plaintiff. The plaintiff had also prayed for an exparte injunction.

(2.) MAHINDER Narain, J. after hearing the counsel for the plaintiff on 19.2.91 granted an ad-interim ex-parte injunction against the defendant, its agents, servants from manufacturing, offering or dealing with the sealing wax under the mark NATRAJ similar to the mark covered by Registration No. 400868.

(3.) THE possibility of the defendants also securing registration of the said trade mark in its favour for the products, namely, sealing wax and chalk sticks cannot be ruled out in the light of the above provision of law. Furthermore, the proprietor of the trade mark is also not entitled to interfere with or restrain the use by any person of the trade mark identical with or nearly resembling it in relation to goods in relation to which that person has continuously used that trade mark from a date prior to the use of the first-mentioned trade mark is relation to those goods. Thus, the exclusive right of the proprietor of a registered Trade Mark to use such trade mark is subject to the restriction provided under Section 33 of the Trade & Merchandise Marks Act, 1958 and gets considerably diluted in case covered by Section 33 qua the prior users. It is admitted case of the parties that plaintiff has not yet started manufacturing or marketing the products in respect whereof the defendants are already in the market under the impugned trade mark. However, the fact of prior user etc. is a matter of evidence and can really be considered only after the evidence has been recorded, but in the light of the discussions above, I am of the view that the plaintiffs have failed to make a prima facie good case for an interim injunction.