SHADI LAL ENTERPRISES LIMITED Vs. KESAR ENTERPRISES LIMITED

JUDGEMENT

(1.) In a suit for perpetual injunction restraining infringement of copyright, passing-off of trade mark and rendition of account, the plaintiff Company, engaged in the manufacture and sale of alcoholic drinks, has filed this application under Order XXXIX, Rule 1 &2 read with Section 151 of the Code of Civil Procedure, seeking temporary injunction restraining the defendant, its agents, distributors, dealers and all others acting for and on its behalf from manufacturing, selling, offering for sale, advertising directly or indirectly and deal ing in alcoholic drinks and other allied goods under the trade mark "CHETAK" or any other trade mark identical to or deceptively similar to the plaintiff's said trade mark.

(2.) The plaintiff's case in brief is that it is engaged in the business of manufacture and marketing of alcoholic drinks under the trade name "Chetak" since the year 1983; had adopted the trade mark "Chetak" and developed a label having artistic quality for its product and has been regularly, continuously and exclusively using the same since then; it is the adoptor, originator and proprietor of the said trade mark; had got approved the label bearing trade mark "Chetak XXX RUM" from Excise Authorities; it has established extensive business in major parts of the country; its sales for the said goods under the trade mark "Chetak" run into crores of rupees and the said trade mark has acquired unique reputation and goodwill in public and the goods under the said trademark are exclusively associated with the plaintiff. The sale figures given in the application for the years 1982 to 1996, run into crores of rupees. It is claimed that on account of long, continuous, extensive and exclusive user thereof the consuming public and defence personnel exclusively associate the said trade mark to the aforementioned goods of the plaintiff and none else. It is stated that in addition to the common law rights, in order to acquire statutory rights for the said trade mark, the plaintiff has filed an application for registration of the trade mark "Chetak" in respect of its product on 8 June, 1984.

(3.) The plaintiff alleges that from April, 1996 issue of a Magazine "High Spirits", it learnt that: the defendant had been claiming itself to be the manufacturer and supplier of alcoholic drinks under several trade marks including the trade mark "Chetak", which is in flagrant violation of the legal vested rights of the plaintiff in the established trade mark "Chetak" and its label; the use of the said trade mark by the defendant in relation to same/identical goods amounts to passing-off the plaintiff's trade mark by virtue of prior adoption; on gaining knowledge about the said user it sent a legal notice to the defendant urging it to stop such infringement, to which the defendant sent a vague reply without disclosing since when it was using the trade mark "Chetak". Claiming that the plaintiff's enquiries have revealed that the defendant has started using the impugned trade mark only recently, has been granted licence by the Excise Department for the impugned mark only in the financial year 1995-96, it is asserted that the defendant has adopted a similar/ deceptively similar trade mark knowingly and deliberately with a dishonest intention to trade upon the hard earned goodwill and reputation of the plaintiff to earn undue profits to which it is not entitled, as the user of the trade mark by the defendant is bound to cause confusion and/or deception amongst the purchasing public and trade leading to passing-off the goods and business of defendant as the goods and business of the plaintiff, particularly when the g(x)ds of the plaintiff as well as of the defendant are of the same nature and description, made from the same raw material, and not only the trade channels of both the plain tiff and defendant are same, even the purchasers are the same. It is thus, claimed that present is the case of triple identity.