S S KHERA Vs. ANAND SON

JUDGEMENT

(1.) The plaintiff has filed a suit for injunction restraining the defendant from dealing in Dry Cleaning business or in any other business under the name Snowhite Drycleaners or any other trade name identical/deciptively similar to the plaintiff's trade name Snowhite. In I.A. 3503/94 the plaintiff has prayed for interim orders.

(2.) The case of the plaintiff tersely stated is that on 20.1.1976 there was an agreement between the plaintiff and the defendant in and by which the plaintiff granted licence to the defendant to use the name in Ghaziabad on payment of royalty and the defendant had been paying the royalty to the plaintiff continuously and the plaintiff has filed letters from 1984 onwards showing the attitude of the defendant accepting the licence and paying the royalty to the plaintiff. On 24.4.1982 the plaintiff issued a notice to the defendant stating, inter-alia, that the defendants had committed breach of the agreement dated 20.1.1976 and that he should immediately stop and close down the Drycleaning business being carried on at R-11/13, Raj Nagar, Ghaziabad under the name and style of M/s. Snowhite Drycleaners and informing the defendant that if he did not comply with the demand appropriate legal action will be taken. On 11.8.92 the defendant replied stating "We are authorised licensee of you paying royalty regularly but due to undermentioned reasons we could not pay you royalty for the last five years." In the end the defendant stated "In the mentioned circumstances, I could not make payments of royalty to you for which I feel sorry. Now I want to pay the balance royalty and want to a new agreement also. I hope by going through all the mentioned facts you will come to know my problem and the reason of delay in paying royalty to you." On 11.6.1993 the plaintiff issued notice to the defendant stating, inter-alia, "That you vide your letter dated 11th August, 1992 promised to pay the balance royalty and wanted to renew the agreement with our client. However, till date you have failed to pay the outstanding royalty an interest thereon nor have entered into any agreement and, therefore, the user of registered trade name and mark "SNOWHITE" by you is illegal and malafide. Under the circumstances, you have become liable to pay our client a sum of Rs. 103125.00 (Rupees One lac three thousand one hundred twenty five only) upto June, 1993, being the royalty/licence fee along with interest at the rate of 10 per cent per annum till realisation. However, our client reserves their right to initiate appropriate proceedings against you for the infringement of their registered trade mark and name which you please note." There was no reply. On 7.4.1994 the plaint in the suit was presented. Learned Counsel for plaintiff brought to my notice Clauses 1, 17, 18, 19, 20, and 21 of the agreement. Those clauses are in the following terms :-

(3.) On the basis of the above clauses of the agreement, the learned Counsel for the plaintiff contended that he is the owner of the Copyright of the trade mark cannot be disputed by the defendant because he is only a licensee and he can not claim any independent right in the trade mark and the Copyright and the first user should be protected. He also contended that once by virtue of clause 18 the licence was terminated the defendant would cease to have any right to carry on the business under the trade mark and the Copyright of the plaintiff. He relied upon the decision of this Court reported in K. Chandu Lal, Bal Krishan, Madan Mohan, Mohan Lal v. M.C.D., 1978 R.L.R. 278, which arose under the Easements Act with reference to immovable property. The principles would apply to the facts of this case also. The learned Counsel for the defendant contended that this Court has no jurisdiction to entertain the suit because no part of the cause of action arose within the jurisdiction of this Court and admittedly the defendant is carrying on business in Ghaziabad, outside the jurisdiction of this Court, and the plaintiff is guilty of delay and latches in approaching this Court. The learned Counsel for the defendant referred to the decision of this Court reported in Lok Nath Prasad Gupta v. Bijay Kumar Gupta, 1995 D.L.T. 502. The principles laid down therein does not apply to the facts of this case.