USHA INTERNATIONAL Vs. USHA TELEVISION LIMITED

JUDGEMENT

(1.) Both the plaintiffs and defendants claim to have adopted the trade mark 'USHA' in relation to the televisions. As to which of the parties is prior in time, is the question that require going into while disposing of the plaintiffs' application I.A. No. 1997/85. It is a settled proposition that, as between the two parties who proposed to use a particular trade mark, the person who designs the mark will get the preference, over the other. In a case of one party proposing to use the mark as against the actual user, the later will take precedence. In between the two parties claiming actual user as against the prior user the party who is prior in time will have the advantage over the other. Even, in regard to the prior registration of the trade mark as against the prior user, the action of the later will prevail.

(2.) In the present proceedings, the plaintiffs not only claim the prior adoption of the trade mark 'USHA' but also lay claim over its actual user. This preposition is not to the liking of the defendants who rely upon the evidence of their prior adoption of this trade mark with the intention of point into the manufacturing process.

(3.) To decide the controversy, one has only to keep in mind the salient features of the plaintiffs suits, as well, as, the defence raised by the defendants in their written statement. As per the averments plaintiff No. 2 Usha International Ltd. is a Company incorporated under the provisions of the Companies Act of which Shri K. Swaroop is the Secretary and duly empowered and authorised to sign, verify and institute the present sun; that plaintiff No. 1 has been joined in this action as a right to relief in respect of and arising out of the same act or series of acts of the defendant; that the plaintiffs belong to the Shriram Group of Companies and have a community of interest; that Shriram Group of Companies is one of India's foremost and largest group which began its operation in 1889; that this group manufactures a diverse range of products which are marketed in India and in over 50 countries abroad; that if was the desire of the founder of the plaintiffs to manufacture and offer for sale high quality products, with a view to compete with foreign imported articles under the brand name; Usha ; that amongst the various companies of this group is the Jay Engineering Works Ltd. who also adopted the trade mark Usha in the year 1936 in regard to Sewing machines for its manufacture and sale; that in course of time Jay Engg. Works Ltd. expanded its range of products and started using the said trade mark in relation to electric fans, regulators, hot air units, hurricane lanterns, fuel injection equipment etc.; that this company has obtained registration of various goods under the provisions of the Trade and Merchandise Marks Act as shown in annexures B, D & E: that another company of the Shriram Group is, Shriram Refrigeration Industries Ltd. which is engaged in the manufacture and sale of diesel engines, water coolers, relays and other electrical goods under the trade mark Usha since the year 1961; that yet another company of this group started manufacturing and sale of piston and piston rings under this mark.