BISWAROOP ROY CHOUDHARY Vs. KARAN JOHAR

JUDGEMENT

(1.) These Orders shall dispose of the Plaintiff's application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure seeking an interim injunction restraining the Defendants from using the trademark/title Kabhi Alvida Naa Kehna (hereinafter referred to as 'KANK') and from making any adverse statements against the Plaintiff. The application has been filed in this Suit for permanent injunction; for rendition of accounts of profits earned by the Defendants under the impugned trademark/title; and for a decree directing the Defendants to deliver-up all material pertaining to the impugned trademark/title for the purpose of destruction.

(2.) The Plaintiff asserts that he had applied for registration of the trademark/title KANK on 17.5.2005 under the Trade Marks Act in Class 41. The Registrar had ordered its advertising on 20th June, 2005, which occurred on the Journal dated February 15, 2006. Thereafter, on 23.6.2005 the Mahoorat of the film had taken place in the presence of Ms. Aruna Irani. It is submitted that the Plaintiff commenced Production. At the time of arguments it has been conceded by learned counsel for the Plaintiff that only about 40 per cent of the shooting has been undertaken. Although some newspapers and trade magazines carried reports of the Defendants film under the same name KANK, the Plaintiff could not initiate legal action predicated on such reports. In September, 2005 the Defendants' Mahoorat took place and immediately thereafter the Plaintiff issued a legal notice dated 13.10.2005 to the Defendants. A communication was also addressed to the Registrar of Trademarks informing it of the disputed use of the film title.

(3.) The Defendants, however, have asseverated that on 13.1.2005 they had approached the Secretary, Association of Motion Pictures and TV Programme Producers for the title registration of KANK-Feature Film and TV. By letter dated 7.5.2005 a 3rd party, namely, Mr. Vinod Pande, had transferred this title, apparently registered by him, to the Defendants. Similarly, Ms. Aruna Irani as Director of A.K. Films Pvt. Ltd. had also transferred the title to the Defendants but restricting it to be used for a film only. The Defendants have also filed photocopies of the Notice circulated by the Association of Motion Pictures and T.V. Programme Producers dated 12.5.2005, thereby informing the public that the feature film KANK stood registered in favour of the Defendants. The Defendants have filed photocopy of the letter dated 14.6.2005 of the Film and Television Producers Guild of India (hereinafter referred to as Guild) recording registration of this title in their favour. Learned counsel for the Defendants have not controverted the fact that although the Plaintiff's legal Notice had been received by the Defendant, no Reply thereto has been filed. In June 2005 the Defendants had addressed two letters to the Guild complaining of the competing use of the title KANK.