RUBALJIT SINGH Vs. KANZ OVERSEAS AND ANR.

JUDGEMENT

(1.) THESE are the applications by the plaintiff under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure and by the defendants under Order XXXIX Rule 4 for vacation of interim order dated 9th February, 2009 restraining the defendant from using mark 'KANZ' in respect of door closures, door closing devices, hydraulic door closures, hardware fittings, glass hardware and restraining the Defendants from using mark 'KANZ' on his packaging material and his catalogue and passing of his goods as that of plaintiff and Defendants' application under Order 39 Rules 1 & 2 of Code of Civil Procedure seeking restrain against the plaintiff from using mark 'KANZ' in respect of door closures, door closing devices, hydraulic door closures, hardware fittings, glass hardware and restraining the plaintiff from using mark 'KANZ' on his packaging material and his catalogue and passing of his goods as that of Defendants.

(2.) THE plaintiff has filed the above -noted suit contending inter alia that he is engaged in the business of the manufacture, import and sale of door closures, door closing devices, hydraulic door closures, hardware fittings, glass hardware fittings etc. in the name and style of Classic Devices as a sole proprietor. The plaintiff contended that he is established in the trade since the year 1994 and he had obtained central sales tax registration in the year 1994 and he obtained an import license in the year 2005 for the import of goods of his interest. The plaintiff also contended that he is one of the Directors of another company, 'Efficient Devices Pvt. Ltd.', which company is in business since the year 2000 and is a family concern of the plaintiff with his mother as a shareholder and a Director. The father of the plaintiff is also stated to be in the similar business which he is carrying on business in the name and style of M/s. Hardwyn Industrial Trading Corporation at B -136, Mayapuri Industrial Area, Phase I, New Delhi, since 1965. The trade mark 'Hardwyn. is used by his father's firm and through the father's firm licensee 'Efficient Devices Pvt. Ltd. in respect of goods are being imported by it. The plaintiff asserted that in January 2007 he conceived and invented the trade mark 'KANZ' and since then the trade mark has been continuously and extensively used in the course of the trade by the plaintiff. The trade mark 'KANZ' is represented in a particular artistic and distinctive manner. According to the plaintiff, the goods sold by him have a packaging material and catalogue in the form of card board boxes having unique getup, layout, color combination and arrangement. For the purpose of trading the goods, the plaintiff is alleged to have engaged the services of Mr. Subhendu Banerjee carrying on business as Square Heads, 147 B, LIG Flats, Rajauri Garden, New Delhi and an artist by profession who prepared the original artistic work. An agreement is alleged to have been executed between the Artist and the plaintiff for creating and devising the device.

(3.) THE plaintiff alleged that the defendant No. 1 is a firm which is an imposter of same description of goods and defendant No. 2 is the proprietor or partner of defendant No. 1. According to the plaintiff, defendants have dishonestly, malafidely and deliberately adopted the identical trade mark 'KANZ' in respect of goods of their import and sale. According to the plaintiff, the defendants have not only adopted an identical trade mark 'KANZ' in respect of the identical description of goods but they have also reproduced the artistic manner in which the trade mark 'KANZ' is represented.