JAY INDUSTRIES Vs. NAKSON INDUSTRIES

JUDGEMENT

(1.) The question which has been referred to this Bench, by a Single Judge of this Court, tor decision is whether a single suit can be filed when it is alleged that there has been an infringement of the plaintiff's trade mark and copy right. In other words can one suit be filed in relation to two distinct statutory causes of action.

(2.) . The plaintiff in the suit had alleged that the defendant had infringed the plaintiff's registered trade mark and also its copy right. The allegation was that the plaintiff's copy right existed on the labels and carton? in which goods had been packed which carried the trade mark of the plaintiff. With regard to the trade mark the allegation was that-the plaintiff was the registered proprietor of the mark "JAY". It was also: alleged, with relation to the copy right, that the plaintiff had been using distinctive cartons in which the goods manufactured by the plaintiff namely, locks, meters, cut outs etc. were packed. It was further alleged in the plaint that the defendant was infringing the plaintiff's aforesaid registered trade mark and also the copy right which existed in the artistic work on the cartons of the plaintiff. Based on this allegation the suit was filed for injunction and damages.

(3.) . Before issuing summons the learned single Judge passed an order dated 18th September, 1990 in which it was, inter alia, stated that the plaintiff had alleged that two distinct statutory rights had been violated, namely, the right granted by The Trade and Merchandise Marks Act and the other right granted by the Copy Right Act. After referring to Order II Rule 6, Civil Procedure Code the learned single Judge was of the opinion that where two distinct statutory causes of action existed which will require different kinds of proof then it would not be convenient to try them as a part of the same suit. Because the learned Single Judge did not agree with the observations of G. R. Luthra, J. in the case of Glaxo Operations U.K.. Ltd. Middlesex (England) v. Samrat Pharmaceuticals Kanpur, AIR 1984 Delhi 265, wherein a contrary view had been taken, he directed that this issue be referred to a larger Bench. It is as a consequence thereof that the reference has been heard by us.