GOEL POCKET BOOKS Vs. RAJA POCKET BOOKS

JUDGEMENT

(1.) The appellant through the present appeal have taken exception to the judgment and order dated July 4, 1992 passed by an Additional District Judge, Delhi, whereby he allowed an application moved by the plaintiff/ respondent (hereinafter referred to as the respondent for the sake of convenience) under Order 39 Rules 1 & 2 of the Code of Civil Procedure for ad interim injunction and restrained the defendant/appellant (hereinafter referred to as the appellant for the sake of brevity) from using the trade mark 'Nagputra' in respect of the comics published by them or any other trade mark which may be deceptively similar to the trade mark 'Nagraj' belonging to the respondent.

(2.) Brief facts which gave rise to the present appeal are as under : that the respondent M/s. Raja Pocket Books are a partnership concern consisting of three partners known as Shri Manoj Gupta, Smt. Prem Lata Gupta and Smt. Parul Gupta. Shri Manoj Gupta is fully competent and authorised to sign and verify the plaint and to institute the suit on behalf of the other partners. The respondent have been carrying on business of publishing and distributing paper back novels, books and comics for the last six years. They in this connection are publishing a series under the name/trade mark 'Nagraj'. The same is very much popular especially amongst the children. The first issue of the comic series under the trade mark 'Nagraj' was broughtinl986 and since then they have published 22 issues of the said comic series and sold near about 15,21,500 copies of the same under the trade mark 'Nagraj'. The total turnover of the respondent from the sale of the comics under the trade mark 'Nagraj' during the period 1986 up-to-date is to the tune of near about Rs. 50 lacs which shows the popularity and the mass appeal of the said comic series. The respondent have incurred a huge expenditure on advertisement of the said comic series on television, radio, magazines. The said publicity expenses would be around Rs. 8 lacs. The respondent have become owner of the trade mark 'Nagraj' by virtue of the long, continuous, extensive and exclusive user of the said trade mark in respect of the abovesaid comic series. They are also the owner of the copyrights of the said comic series under the abovesaid mark.

(3.) The appellant also claim to be the publishers of books and other materials including comics. They have very recently brought out certain comics under the name and style of 'Nagputra. The said trade mark 'Nagputra' adopted by the appellant is deceptively similar to the trade mark 'Nagraj' of the respondent inasmuch as the trade marks 'Nagputra' and 'Nagraj' convey the same idea. The aforementioned trade mark adopted by the appellant depicts the device of a snake and fictitious character having the supernatural powers of a snake. The primary and essential feature in both the trade marks is the word 'Nag'. The overall impression created by both the trade marks is the same. The readers are thus bound to be confused with respect to the two names. There is every apprehension that one may be taken for the other. They may be led to the belief that the Nagputra comic series are also from the same source as that of Nagraj comic series by the respondent. The appellant have not only copied the get up, colour and dress of the respondent's character but have also copied the distinctive and special features of the character Nagraj. The appellant were well aware about the use and reputation of the trade mark 'Nagraj' being used by the respondent for their comic series. Thus they were under an obligation not to have adopted the trade mark 'Nagputra' in respect of their comic series. However, they have done so dishonestly and with ulterior motive. The illegal activities of the appellant, adverted to above, are putting the respondent to a great loss and damage in their business in terms of money besides the loss of reputation which is difficult to be ascertained in terms of money. The appellant are selling, advertising and offering for sale their comics under the impugned trade mark 'Nagputra' in the markets of Delhi. Thus they are infringing the trade mark 'Nagraj' of the respondent.