COOLWAYS INDIA Vs. PRINCO AIR CONDITIONING AND REFRIGERATION

JUDGEMENT

(1.) THE plaintiff, claiming to be a proprietary concern, engaged in the business of manufacturing and marketing of window/split type air-conditioners and parts thereof under its reputed trade mark "PRINCE" since the year 1979 and by virtue of continuous user thereof acquired goodwill and reputation in the trade, in May, 1983, applied for the registration of its trade mark "PRINCE" in respect of air-conditioners, also applied for registration of the artistic work for the logo used along with its trade mark "PRINCE" which was duly registered under the Copy Right Act in August, 1983. Alleging to have enormous sales and to have spent substantial amount on advertisement, acquired invaluable reputation and to have come to know in May, 1992 that the defendant has dishonestly started selling and offering for sale air- conditioners under the trade mark "PRINCE AIR CON" and using a logo/monogram which is deceptively and confusingly similar to the plaintiff's trade mark and the logo/monograph used by the plaintiff, affecting his reputation and goodwill has filed this suit, in passing off action, for permanent injunction restraining the defendant, its employees, servants and agents etc., from using the Trade Mark "PRINCE AIR CON" in relation to his air-conditioners and for rendition of accounts in respect of profits made by the defendant by using plaintiff's Trade Mark. Along with the suit, an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, for interim relief in terms of the prayer for permanent injunction against the defendant/respondent has been filed.

(2.) THE application is resisted by the defendant, mainly on the pleas : the plaintiff has come to the court with unclean hand, inasmuch as it has not disclosed that its application of registration of the trade mark "PRINCE" stands dismissed, the defendant is the prior in adoption of trade mark "PRINCE REFRIGERATION" with key portion of "PRINCE", which trade mark it is using continuously, extensively and uninterruptedly since April 1974, the plaintiff is not the lawful owner and proprietor or the originator of the trade mark "PRINCE" and is in fact an infringer of registered trade mark of M/s Electronics Ltd., who are the owners and proprietors of the trade mark "PRINCESS"; the same trade mark also stands registered in respect of heating apparatus, heaters, ovens etc. in the name of some other person. It is, therefore, pleaded that the plaintiff is not entitled to any injunction against the defendant.