PRITAM DASS Vs. ANIL FOOD INDUSTRIES

JUDGEMENT

(1.) This order will dispose of FAO No. 106/92 and FAO No. 166/92 directed against the order passed by the Additional District Judge dated 24.4.1992 refusing to restrain the defendant from using trade mark 'CHATMOLA' with the pouch and another order dated 8.7.1992 restraining the appellant during the pendency of the suit from using the trade mark 'CHATMOLA' and marketing the same in the pouch marked 'C'.

(2.) Mr. Man Mohan Singh, learned Counsel appearing for the appellant, has contended before me that the appellant-plaintiff was a prior user of the trade mark 'CHATMOLA' with the pouch having a device of an 'Elephant' and first use of the plaintiff was of 1.11.1990. The first sale of the goods were from 14.12.1990, whereas the defendant has on its own shown the first user to be that from 8.1.1991. Mr. Singh has argued that the pouch of the plaintiff having the distinctive mark of 'Elephant' containing the product 'CHATMOLA' was prepared by the plaintiff on 17.10.1990. He has further contended that the appellant has been using the device of 'Elephant', as has been made on the pouch, since 1988 in relation to its products and other confectionary items. Great stress was laid by Mr. Singh regarding the application for registration of pouch under Section 45 of the Copyright Act, 1957, which was made by the appellant. According to the appellant that application was filed by the appellant with the Registrar of Trade Mark on 1.11.1990 in relation to the trade mark 'CHATMOLA'.

(3.) Yet another arguments advanced by the learned Counsel for the appellant was that the respondent-defendant acted cleverly and imitated trade mark of the appellant 'CHATMOLA' and design of another packing of the appellant 'tinimini /tiny miny' thereby giving impression to the unwary and innocent purchasers that respondent's goods emanated from the appellant's only and on the basis of written statement filed by the respondent in the Trial Court, Mr. Singh has contended that said averment has not been specifically denied by the respondent in the written statement. On the basis of above contentions, learned Counsel for the appellant has argued that the order of the Trial Court is to be set aside as appellant had amply demonstrated that the use of the plaintiff was prior in time than that of respondent and even otherwise by virtue of application for registration of the trade mark, the plaintiff had prior right to use trade mark 'CHATMOLA' with a device of 'Elephant' on the pouch.