CHHATTAR EXTRACTION LIMITED Vs. KOCHAR OIL MILLS LIMITED

JUDGEMENT

(1.) This is an appeal by the defendants, Chattar Extractions Ltd and its Managing Director against the order of the learned Single Judge in I.A. 6708/94 in Suit 1208/94. The order was passed under Order 39, Rule 1 Civil Procedure Code and a temporary injunction was granted in favour of the respondent-plaintiff, directing the appellant, not to manufacture, sell nor offer for sale nor advertise directly or indirectly, nor deal with oil under the trade mark 'Pakwan' or any other trade mark which is identical, or decepti vely similar with the plaintiffs trade mark.

(2.) The learned Single Judge) after referring to the contentions, held that prima facie plaintiff was using the trade mark 'Pakwan' for its refined oil manufacture from 1984, that the plaintiff had set out its sales figures and expenses on advertisements publicity for the years 1983-84 to 1991-92, and the figures were substantial. Invoices and letters from the customers have also been Filed by the plaintiff showing its having marketed oil in the trade name 'Pakwan' for several years. Even the prospectus issued by plaintiff, - while going into capital market - is of October/Novemb, 1985. The plaintiffs products are micro-refined Soyabean oil, Soymeal, Soya flour. Soya foods etc. The learned Single Judge rejected the contention of the appellant that the documents filed by the plaintiff showed a limited set of customers - such as Hotels/Governent Departments where oil might have been supplied without trade name and also rejected the contention that the plaintiff has not produced evidence of retail sales. For this purpose, learned Single Judge relied upon the large number of invoices produced by the plaintiff which showed large scale' supplies under the name "Pakwan". This was apart from marketing in the general market. The learned Judge observed that the letters from some brokers/businessmen that they had not heard of plaintiff marketing "Pakwan" products, was of no evidentiary value. Learned Judge also observed that the fact that plaintiff applied for registration of trade mark at some point and withdrew the same was of no effect. The plaintiff has produced the appellant's prospectus for public issue, of March/April,1994 and page II thereof showed that appellant was dealing in non-edible oils and also in refined oil under the trade name "Savera" and "Pakwan" in North India. Appellant applied for registration in 1993. These documents showed that appellant came into the market in 1993, while plaintiff was there from 1984.

(3.) These facts, in our view, are clear evidence of the prior user by the plaintiff and its business, both retail and to departments/hotels from 1984 and that appellant came into the market only in 1993 and is using the same name "Pakwan" for its oils. We agree that this material relied upon by the learned Single Judge prima facie satisfies the requirements of law in a "passing-off action by a prior user of a trade mark to obtain temporary injunction.