FLOWER TOBACCO COMPANY Vs. STATE

JUDGEMENT

(1.) This order shall also govern Crl. M(M) 535 of 1986.

(2.) The parties to the dispute-Flower Tabacco Company (hereinafter to be referred as the complainant) and Mottahadesh Brothers (hereiufter to be referred as the accused)-are engaged in ths business of manufacturing and sale of tobacco for Hukkah. The dispute is in respect of a trade mark "ABBU DALLA/device of a pot represented in a special and in a particular manner" and copyright in artistic work namely printing on the container used for packing tobacco, with distinctive features of ABBU DALLA having an alleged unique colour combination, lay out and arrangement.

(3.) On February 27, 1986 the complainant filed a complaint under Sections 78 and 79 of the Trade & Merchandise Mark Act, 1958 and Sections 63 and 64 of the Copyright (Amendment) Act, against the accused and unknown persons. The complainant claimed that it bad adopted the said trade mark in the year 1972 in relation to its goods and had used the trade mark continuously and exclusively in the course of its trade. It had extensive sales amounting to nearly Rs. l.00 crore per annum and had spent substantial amount on the publicity. These goods had acquired reputation for quality in the market. The complainant had exclusive right to use the trade mark and was its proprietor by virtue of priority in adoption and use. It was further alleged that in 1978 it applied for the registration of the said trade mark. The accused filed opposition which was. however, deemed to have been abandoned vide order dated 10th July. 1980 and the complainant was granted registration and its legal right to the exclusive use of the trade mark was recognised. It was next averred that the tobacco was being packed by the complainant in a distinctive container having a unique colour combination lay out and arrangement and its copyright was registered under the Copyright Act under registration No. A-21911/78.