BIKANERVALA Vs. AGGARWAL BIKANERWALA

JUDGEMENT

(1.) This is an application under Section 135(2) of the Trade Marks Act, 1999 and Order 39 Rules 1 and 2 read with Section 151, CPC, made on behalf of the plaintiff seeking an ad interim injunction restraining the defendant, its servants, stockists, distributors, agents and retailers from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in food articles for human consumption under the impugned trade mark/trade name/infringing artistic label 'AGGARWAL BIKANER WALA' annexed as Annexure B to the plaint or from using any trade mark/trade name/infringing artistic work containing the name/mark 'BIKANER WALA/BIKANERVALA' or any other name/mark/artistic work which is identical or deceptively similar to the plaintiff's copyright and/or its famous trade mark/trade name 'BIKANERVALA'.

(2.) Plaintiff has filed a suit under Section 27(2) read with Sections 134 and 135 of the Trade Marks Act, 1999 and Sections 51 and 55 of the Copyright Act, 1957 for permanent injunction restraining infringement of copyright, passing off, rendition of accounts, etc. on the averments that the plaintiff's firm has coined and adopted the Hinglish expression 'BIKANERVALA' which the plaintiff has been using extensively since 1981 in respect of the sweetmeat and other allied and cognate products. In the year 1992 the plaintiff adopted a distinctive and eye catching artistic label titled 'BIKANERVALA' by using the same in a unique script in as much as each of the labels are written in a unique thick font and the said artistic work of the plaintiff is duly registered under the provisions of the Copyright Act, 1957. The plaintiff claims to have built up an enviable reputation and valuable goodwill in the eyes of the traders and general public at large in respect of its goods being sold under the said mark/ artistic work and its total turnover is stated to be more than Rs. 300.00 crores. The case of the plaintiff is that in the last week of January, 2004 the plaintiff learnt that the defendant is running a sweetmeat shop under a deceptively similar trademark/tradename/artistic work of 'AGGARWAL BIKANER WALA', which is phonetically and visually identical with that of the plaintiff's trademark. The defendant is using the said mark with a view to cause confusion and deception in the trade and public and to make unlawful and illegal gains. It is alleged that the defendant has made a misrepresentation in the trade and business to prospective customers which is likely to lead create immense confusion to the public at large and create an impression that defendant's products are in some way connected with the plaintiff, which representation is calculated to cause perjury and damage both the plaintiff's business and its reputation.

(3.) The suit and the application is being contested by the defendant and written statement/reply has been filed raising preliminary objections denying that the plaintiff has any exclusive right to the word 'BIKANERVALA' because the said word contains a geographical name which cannot be permitted under the law. It is denied that the use of the word 'AGGARWAL BIKANER WALA' by the defendant in respect of his goods is structurally, visually and phonetically similar to the trademark of the plaintiff. It is denied that the plaintiff is entitled to any injunction as sought for by him.