(1.) In this Application in a suit under sub-section (1) of S. 120 of the Trade and Merchandise Marks Act, 1958, hereinafter referred to as 'the Act', a question has arisen whether the suit can be continued in spite of the Defendants commencing and prosecuting an action for declaration and injunction against the Plaintiff herein in the Bombay High Court, and, if this suit survives, the nature of interim order to be made in it.
(2.) The Plaintiff is a Private Limited Company (hereinafter referred to as Sidharth). Defendant No. 1 (hereinafter referred to as Bedrock) was the registered proprietor of trade mark No. 314132 Bedrock in class 12 in respect of cycle tubes (hereinafter referred to as the Trade Mark). Bedrock permitted Sidharth to use the Trade Mark by an agreement dated 19th of July 1985 (hereinafter referred to as the agreement). The agreement was made without any limit on its period, but subject to a termination clause No. 9 which provided, inter alia, for the agreement to be terminated by either party by giving three months' written notice in that behalf to the other. After execution of the agreement, Sidharth started using the Trade Mark. Sidharth and Bedrock jointly filed an application in prescribed form TM 28 to register Sidharth as "registered user" of the Trade Mark.
(3.) Later, Sidharth was informed that Bedrock assigned all its rights, title and interest in the Trade Mark together with goodwill to the second Defendant (hereinafter referred to as 'Poddar'). Negotiations started between Sidharth and Poddar for entering into a fresh agreement for use of the Trade Mark. While negotiations were going on, Poddar sent a letter dated 15th of November 1986 to Sidharth, referring to previous correspondence between then, alleging that Sidharth had not sent the proposed agreement and other papers and therefore, poddar took it that Sidharth was not interested in it, and stated "......We withdraw our offer of registered usership to you" It was further stated :