GOYAL GRAMODHYOG SANSTHAN Vs. SETH BROTHERS

JUDGEMENT

(1.) . This order shall dispose of above named FAO 331 of 2002 filed against granting injunction as well as a Civil Revision Petition No. 5420/2002 against rejection of an application under Order 7 Rule 11 of the Code of Civil Procedure (for short the 'CPC') moved by defendants No. 1 to 3 petitioners, namely, Goyal Gramudyog Sansthan, Goyal Brothers and Goyal Herbals (P) Ltd. Both the matters are being taken together for they involve some common question of law and facts.

(2.) . Brief facts giving an occasion to this appeal and Civil Revision are as follows : Plaintiff/respondent No. 1, M/s. Seth Brothers, filed a suit for permanent injunction for restraining infringement of the trade mark, copyright, passing off and rendition of accounts in respect of one of its ayurvedic medicine/churan "KAYAM CHURAN" used for curing chronic constipation, headache and hyper acidity. The plaintiff/respondent claimed that they adopted and put to use trademark "KAYAM" in the year 1977 and they are the registered proprietor of the trade mark "KAYAM" registered under No. 348061-B dated 1st April, 1979. The plaintiff/respondent filed the suit when they came across the products of defendant No. 1 bearing the impugned trade mark "KAYAM" by using the words "KAYAM PLUS". Thus the petitioner/defendant Nos. 1 to 3 were guilty of fraudulent conduct in adopting a deceptively similar trademark "KAYAM PLUS" churan being an "Ayurvedic Medicine" could be manufactured and sold only after obtaining a licence. No Licence had been filed to establish that the petitioners/defendant No. 1 has got a licence to do so. On 25th August, 2001 a notice was issued to the respondent to desist from using the trade mark. It did not bring about any desired result and ultimately they had to file the suit. It is also alleged that the plaintiffs are using their trade mark "KAYAM" since 1977. They have conducted sales worth more than Rs. 70 crores of Kayam Churan bearing the said trade mark "KAYAM" and have allegedly till date spent more than Rs. 10 crores in advertising. The trademark "KAYAM" by its continuous, extensive and exclusive user throughout India on a very large scale has acquired since 1977 distinctive meaning in relation to Ayurvedic medicines manufactured by the respondent No. 1/plaintiff.

(3.) . The plaintiff/respondent No. 1 further claimed that they came to know for the first time in the last week of August, 2001 that defendants No. 1 to 3/appellants were selling their goods in Delhi. After giving notice to the petitioner to desist, and when it did not bring the desired result, the suit was filed. In para 19 of the plaint jurisdiction of this Court was claimed on the following basis :-