BABU RAM DHARAM PRAKASH Vs. IZUK CHEMICAL WORKS

JUDGEMENT

(1.) THIS Appeal assails the Order dated 11. 5. 2007 of the learned Single judge granting an ex parte ad interim injunction to the Plaintiff, as prayed for in the Application under Order XXXIX Rules 1 and 2 of the Code of Civil procedure (CPC ). Briefly stated, the Defendants have been restrained from using the Plaintiff's Trademark "moon Star" and/or from using the device of a star in the lap of the moon or any part thereof or any of the Defendant's products or business.

(2.) INDEED, the learned Single Judge has passed a very detailed Order in which various precedents, including Atlas Cycle Industries Ltd. vs Hind Cycles limited, ILR 1973 1 Delhi 393, Modi Sugar Mills Ltd. vs Tata Oil Mills Ltd. , air 1943 Lahore 196, James Chadwick and Bros. Ltd. vs The National Sewing thread Co. Ltd. , AIR 1951 Bombay 147, Amritdhara Pharmacy vs Satya Deo Gupta, air 1963 SC 449, Corn Products Refining Co. vs Shangrila Food Products Ltd. , air 1960 SC 142, K. R. Chinna Krishna Chettiar vs Sri Ambal and Company, AIR 1970 SC 146 : 1969 (2) SCC 131, De Cordova vs Vick Chemical Coy, 68 RPC 103, devi Pesticides Pvt. Ltd. vs Shiv Agro Chemicals Industries, 2006 (32) PTC 434 (Madras) (DB), Shaw Wallace and Co. Ltd. vs Superior Industries Ltd. , 2003 (27)PTC 63 (Delhi), Vrajlal Manilal and Co. vs M/s. N. S. Bidi Co. , AIR 1987 Delhi 312, William Grant and Sons Ltd. vs Mc Dowell and Co. Ltd. , 1997 PTC 17 134, parle Products P. Ltd. vs J. P. and Co. , Mysore, (1972) 3 SCR 289, Glaxo operations UK Ltd. vs Samrat Pharmaceuticals, AIR 1984 Delhi 265, Metro playing Card Co. vs Wazir Chand Kapoor, AIR 1972 Delhi 248, Hitachi Ltd. vs ajay Kumar Agarwal, 1996 PTC (16) DB (Delhi), Hardie Trading Ltd. vs Addisons paint and Chemicals Ltd. , 2003 (11) SCC 92 and State of Mizoram vs biakchhawna, 1999 (1) SCC 156 have been discussed. The extract from James chadwick enunciates that the "real question is as to how a purchaser who must be looked upon as an average man of ordinary intelligence, would react to a particular trademark, what association he would form by looking at the trademark, and in what respect he would connect the trademark with the goods which he would be purchasing. "

(3.) THE learned Single Judge has concluded that the Defendant has fraudulently copied an essential part of the trademark of the Plaintiff in using "star as well as the device of a star" as part of its trademark. It has been noted that the Plaintiff has proprietary rights over the same by user of the trademark since 1917 and registration of its trademark since 1943. The learned single Judge has also highlighted that the legal rights of the Plaintiff are based on its registered trademark and, therefore, is entitled statutorily to protection.