SANT KUMAR MEHRA Vs. RAM LAKHAN

JUDGEMENT

(1.) By this order I propose to dispose of the application registered as I.A. No. 9321 /1998 filed by the plaintiff praying for a temporary injunction against the defendant restraining them from processing, selling and offering for sale items for human consumption like roasted gram, roasted groundnut, Gajak, Rewari, Patti and other allied and cognate goods bearing the trade mark MATKEWALA with or without the device of an earthen pot.

(2.) . The plaintiff instituted a suit in this Court praying for permanent injunction restraining the defendants from passing off the various items meant for human consumption like roasted gram, roasted groundnut, Gajak, Rawari & Patti of the plaintiff under the trade mark MATKEWALA, as that of the defendant. Alongwith the aforesaid suit the plaintiff also filed the injunction application on which notice was issued and on service of the same the defendant appeared in the suit and has filed a reply to the aforesaid application refuting the allegations made in the application. The plaintiff has stated in the application that the plaintiff is engaged in the business of processing and selling various items meant for human consumption like roasted gram, roasted groundnut, Gajak, Rewari, Patti and other allied and cognate goods for human consumption. According to the plaintiff the said items are packed, wrapped and offered for sale to the public in paper bags, carry bags and other packings upon which the trade mark MATKEWALA appears with the device of an earthen pot i.e. MATKA. The plaintiff has stated that the said trade mark MATKEWALA by virtue of its long and extensive use has become distinctive and associated with the name of the plaintiff and that the plaintiff has acquired unique goodwill and reputation on the said trade mark. It is also stated that the plaintiff has also applied for registration of the trade mark MATKEWALA with the device of an earthen pot, by their application dated 13.3.1995 which is accepted and thus awaiting the registration certificate. The plaintiff has also stated that the said trade mark was being used by the plaintiff from the year 1958 and a yearwise statement of sales from the year 1990-91 has also been furnished in the application.

(3.) . The defendant has contested the application contending inter alia that the expression MATKEWALA is descriptive in respect of goods like roasted grams and roasted groundnuts, since the said items are prepared and processed by using a MATKA alongwith a hot bed of sand. It is also stated that the aforesaid descriptive expression and descriptive sign MATKEWALA with the device of MATKA is being used by the traders in the trade to convey to the intending purchasers that the groundnut and gram being sold and/or offered for sale by the said parties have been processed in a particular manner. It is also the case of the defendant that the plaintiff is actually using the trade mark MATKA and not MATKEWALA which is supported by the vouchers placed on record as also by the records of Suit No. 30 of 1996.