RAKESH KUMAR AGGARWAL Vs. LOCK & LOCKING DEVICES

JUDGEMENT

(1.) The present appeal has been preferred against the final judgment and decree dated 9th January, 2009 by which the learned Trial Court dismissed the suit of the Appellant/Plaintiff (hereinafter "Plaintiff") and partly decreed the counter claim of the Respondent/Defendant (hereinafter "Defendant"). The operative portion of the impugned judgment is set out below:

(2.) The dispute relates to the trademark VIJAYAN used in relation to locks, locking devices and handles. The Plaintiff filed a suit for infringement of registered trade mark and passing off. It claimed that it had used the mark VIJAYAN since 1946 through its predecessor, from whom it had acquired the rights. According to the Plaintiff, the Defendant subsequently adopted and used the said mark for identical goods and hence the prayer for injunction.

(3.) The Defendant claimed that it adopted the trademark VIJAYAN and started using the same since 1960. It filed an application for registration of the trademark on 10th July, 1984. The said mark was advertised in the trademark journal on 1st March, 1991 with the user claim of 1960. The Defendant also filed a copyright application which was registered as A46227/1984 for the artistic work. It thereafter came across a notice issued on 1st January, 1996 by the Plaintiff (Mr. Rakesh Kumar Aggarwal). By the said notice the Plaintiff had asserted rights in the mark VIJAYAN and called upon the public /dealers not to use the same in violation of its rights. When the Defendant came to know of the same, it issued a letter dated 30th January, 1996 by which it called upon the Plaintiff to disclose its date of use of the trademark VIJAYAN and the registration of the same. Upon not receiving a reply, it sent a reminder dated 21st March, 1996 (Ex.DW-1/4).