MOHAN LAL KHATRI Vs. KHATRI BIDI WORKS

JUDGEMENT

(1.) THE plaintiffs filed application (I.A. No. 2434/83) under Order 39 Rules 1 and 2 and section 51 of the Code of Civil Procedure for the grant of temporary injunction in a suit for permanent injunction restraining infringement of trade marks, passing off, rendition of accounts and damages. By order dated 25th May, 1983 defendants were restrained from dealing in Bidis under the trade mark PARI CHAP of any other mark identical or deceptively similar to the said trade mark or the label mark of the plaintiffs till further order. THE defendants filed application (I.A. No. 3521/83) for vacating the said ex-parte order dated 25th May 1983. THE defendants have also filed reply to the plaintiff's application for injunction along with documents in opposition to the plaintiff's application.

(2.) THE plaintiffs allege that their firm M/s. Mohan Lal Khatri is a partnership firm, they have been engaged in manufacture and merchandise of Bidis since 1966; they are proprietors and of trade mark 'PARI CHAP' under registration No. 138786, 158448 and 321356 in class 34; that originally the said registered trade marks are owned by Amarchand Atmaram and by a Deed of Assignment dated 16th March, 1982 Amarchand trading as Amarchand Atmaram, Beawar, Rajasthan assigned the said three trade marks along with the goodwill of the business for which the trade marks have been used to the plaintiffs; the said assignor and assignee of the trade mark made a joint request before the Registrar of Trade Marks to record plaintiffs as subsequent proprietors which is still pending; the trade mark PARI CHAP has been in continuous and regular use since 1949 by them and their predecessor and it has acquired reputation and the public recognise the goods bearing the trade mark PARI CHAP to be the exclusive merchandise of the plaintiffs and none else and it has been widely advertised and the sales are extensive; the defendant No. 1 Khatri Bidi Works recently started manufacturing and selling Bidis under the mark PARI CHAP in violation of the rights of the plaintiffs; the defendants not only adopted an identical trade mark but also a false trading style Amarchand Atmaram, to which they have no right; the trade mark PARI CHAP adopted by the defendants is identical phonetically, visually and structurally; Moolchand s/o Veerchand was partner of Amarchand in the firm Amarchand Atmaram from 1st November, 1957 to 30th September, 1966; a dissolution deed was executed between Amarchand and Moolchand on 1st October, 1966 whereunder all the assets and liabilities were taken over by Amarchand. It is also alleged that in July 1982 plaintiffs came to know about the use of the trade mark PARI CHAP on the part of the defendants. THE plaintiffs therefore, filed the present suit for permanent injunction along with the application for grant of temporary injunction.

(3.) LEARNED counsel for the plaintiffs has referred to sections 31, 32 and 33 of the Trade and Merchandise Marks Act, 1958 and submits that registration in the records of Registrar of Trade Marks is prima facie evidence of the ownership of the various trade marks, and that the registration is conclusive as to its validity after 7 years. There may not be any dispute about this proposition of law but the whole question for decision at this stage is whether the defendants are to be restrained from using the trade marks which they have been using since October, 1966. This user may be right or wrong but at this stage it cannot be said that they have not been using the trade mark since October 1966 to the knowledge of the plaintiffs.