KALINGA GUDAKHU UDYOG Vs. KONARK GUDAKHU FACTORY

JUDGEMENT

(1.) Shri Ram Niwas Aggarwal, Smt. Saraswati Devi, and Smt. Dropadi Devi entered into a partnership by means of a deed of partnership dated 4th April, 1975. The partnership was to carry the business of manufacturing and sale of GUDAKHU at Udit Nagar, Rourkela. The said three partners were the registered owners of the Trade Mark "STAR" in class 3 under number 3,14,975 dated 9.5.76, in respect of GUDAKHU being tooth powder made from tobacco for sale in the states of Bihar & Orissa. The three partners were also owners of the copyright in respect of artistic work "STAR" attached with the certificate under registration No. A-34,376/81. According to this certificate Shri Ram Niwas Aggarwal one of the partners was an a author of this work.

(2.) The partnership was dissolved by a deed dated 9th April, 1986 w.e.f. 31.3.1986. On the same day another partnership under the name and style of M/s. Kalinga Gudakhu Factory at Rourkela was constituted w.e.f. 1.4.1986. This firm had 4 partners namely S/Shri Ram Niwas Aggarwal, Om Parkash Aggarwal Arun Kumar Aggarwal and Shri Sunil Kumar Aggarwal. It appears that disputes arose between the partners. Thereafter, Shri Ram Niwas Aggarwal, Sunil Aggarwal, two partners of M/s. Kalinga Gudakhu Factory and Shri Sanjay Aggarwal formed a new partnership firm to carry out the same business. Shri Ram Niwas Aggarwal, applied for registration of the assignment on 29th December, 1987 alleging that the said trade-mark had been assigned to him. The certificate was granted by the Registrar on 29th January, 1988 in favour of Shri Ram Niwas Aggarwal, Shri Om Parkash Aggarwal, the other partner of M/s. Kalinga Godakhu Factory, it appears also started the business in the name of Konark Gudakhu Factory and started using the trade mark "5 STAR" and label Gudakhu.

(3.) Feeling aggrieved plaintiff firm filed this suit for permanent injunction restraining the defendants, its servants, agents, representatives and dealers and or other person on its behalf from manufacturing, selling or otherwise dealing in the tooth powder made of Tobaccu under the Trade mark "STAR BRAND" which was registered in the name of the plaintiff under the Trade & Merchandise Act, 1958 or under any other mark which was identical. Consequential reliefs were also claimed.