KUSAN INDUSTRIES Vs. PUNJAB FOOD CORPORATION

JUDGEMENT

(1.) This first appeal challenges the judgment and order of the Additional District Judge dated 29th March, 1982 restraining the appellant-defendant No. 2 from selling the products under the trade mark 'KISHAN and 'SUHNA' or any other deceptively similar trade mark and from using the design/art work of the plaintiff existing under the title 'SOHNA' and from infringing the copyright in the 'KISAN' label and from trading under the name 'KISAN INDUSTRIES' or any other deceptively similar copyrights and trade name amounting to infringement and/or passing off till the decision of the suit,

(2.) Briefly the facts are that M/s. Punjab Food Corporation, a partnership firm, (plaintiff-respondent No. 1) on 5th May, 1981 instituted a suit for passing off Cattle Poultry Feed under the trade name 'KISAN' or 'SOHNA' and infringing the copyright besides rendition of accounts. The plaintiffs have alleged that they have been carrying on business of manufacturing Cattle Poultry Feed since 1977 and using distinctive trade mark 'KISAN' and a distinctive label consisting inter alia, of the word 'KISAN', the device of Buffalow and the words Cattle Feed in circles, that they have filed an application for registration of their trade marks KISAN' and 'SOHNA', that they have been using trade mark 'KISAN' since 1977 and trade mark 'SOHNA' since 1978, that trade mark 'SOHNA' had been registered under the Copyright Act, 1957 on 20th Nov., 1979, that their goods under the aforesaid trade marks and labels have acquired goodwill and reputation in the market because of its excellent and superior quality, that they have spent huge amounts on advertisement, that M/s. Kandi Gharoli Dairy Farm (defendant No. 1-respondent No. 2) is the agent of M/s. Kisan Industries (appellant-defendant No. 2 for Cattle and Poultry Feed under the trade marks 'KISAN' and 'SOHNA' being manufactured by the appellant at Ludhiana, that the adopted trade mark 'KISAN' and 'SOHNA' are deceptively similar to their well known trade mark, that they came to know of the defendants infringing the trade mark in the first week of February, 1981 and therefore sent a notice dated 10th February 1981 calling upon them to desist from using their trade mark and copyright, that defendant No. 1 on 4th May, 1981 sold the spurious and inferior quality goods under the infringing trade mark and copyright 'KISAN' and 'SOHNA' to the plaintiffs. Along with the suit the plaintiffs filed an application for temporary injunction. An ex parte injunction was issued by the trial Court on 5th May, 1981. The appellant filed an application under O. 39, R. 4 of the Civil Procedure Code for vacation of the ex parte injunction order. They also filed reply to the injunction application. The trial Court confirmed the ex parte order on 16th July, 1981. An appeal was filed in this Court which was accepted by Yogeshwar Dayal, J. on 15th Oct., 1981 and the matter regarding grant of temporary injunction was remanded to the trial Court. The trial Court again issued the aforesaid temporary injunction by judgment and order dated 29th March, 1982.

(3.) The case of the appellants-defendants is that the trade marks 'KISAN' and 'SOHNA' were being used by Sant Ram, Proprietor of M/s. Sant Ram & Sons, Ludhiana, that Sant Ram by means of an agreement dt. 6th March, 1979 assigned the trade marks 'KISAN' and 'SOHNA' along with the goodwill of the business to Virender Kumar, a partner of the appellants firm, that Sant Ram & Sons have been using the said trade mark since 1976 and since assignment the appellants have been using the same, that the appellants being the prior users of the said trade marks cannot be restrained by any injunction or otherwise, that they made applications before the Registry of the Trade Marks with respect to the said trade marks which are still pending, that in fact the plaintiffs have copied the trade marks and have thus infringed their rights. The appellants have further alleged that after the assignment of the trade marks 'KISAN' and 'SOHNA' along with the goodwill of business by Sant Ram in favour of Virender Kumar by means of the deed dated 6th March, 1979, Virender Kumar and others entered into partnership in terms of the deed dated 31st March, 1979 to carry on business of manufacture and re-sale of cattle poultry feed and allied goods under the name and style of 'KISAN INDUSTRIES', that they carry on their business at Ludhiana, that the plaintiffs also carry on business at Khanna, that defendant No. 1 has never been their agent and that the Courts at Delhi have no jurisdiction to try the suit.