VIRAJLAL MANILAL AND COMPANY Vs. ADARSH BIDI COMPANY

JUDGEMENT

(1.) This is second application of defendant, under Order 39 Rule 4 read with Section 151 CPC for varying and setting aside the order of injunction dated 20th January, 1995 and allowing the defendant to carry on his trade of Bidis in the District of Muradabad, Uttar Pradesh under the trade-mark/label '122'.

(2.) Facts in brief are that plaintiff filed a suit against the defendant Adarsh Bidi Company for perpetual injunction, for infringement of copyright, passing off trade-mark and for rendition of accounts etc. pleading therein that plaintiff has been carrying on business of manufacturing and marketing of Bidis for the last more than five decades. The plaintiff has been using trade-mark/labels consisting of numerals "22" on its Bidi products. The numerals '22' are duly registered in the name of the plaintiff under the provision of Trade and Merchandise Marks Act, 1958. The defendant has no right to adopt or use the impugned trade-mark or label "122" which is deceptively similar to plaintiff's registered trade-mark/labels 22.

(3.) By order dated 17th December, 1991, the defendant was restrained from selling Bidis under the trade-mark 122. The defendant has filed written statement, inter alia, pleading that defendant is neither manufacturing Bidis in question in Delhi nor marketing the same in Delhi; and no cause of action had arisen in Delhi. Thus this Court has no jurisdiction to try the suit. He has also filed IA No.8016/92 on 22nd. July, 1992 praying for vacation of the ex parte injunction. By detailed order dated 20th January, 1995, Hon'ble Mr.Justice R.C.Lahoti (as his Lordship then was) confirmed the interim order, restraining the defendant from using trade-mark 122 and any other trade-mark consisting of such numerals as may be deceptively similar to that of plaintiff "22". The defendant's application was dismissed. The defendant took up the matter in appeal. The application for stay of the impugned order was dismissed vide order dated 20th January, 1998, by the Division Bench.