SHRIJEE SYNTHETICS BOMBAY PRIVATE LIMITED Vs. MANJU FALLS

JUDGEMENT

(1.) This order shall dispose of an IA No. 11157/95 in S.No. 2527/95. One Sh.Kailash Kasera, Selling Agent of the plaintiff Company, has filed this suit for permanent injunction 'on behalf of the above named Company restraining the defendants and their agents etc. (i) from manufacturing, selling, offering for sale or otherwise directly or indirectly dealing in "textile piece goods/blouse pieces" under the infringing trade name MANJU or MANJU FALLS or any other mark which may be identical or deceptively similar to the registered trade mark MANJU of the plaintiff"; (ii) for restraining the defendants and their agents etc. from passing off their goods as the goods of the plaintiff. The plaintiff further seeks a decree of Rs. 5,00,000.00 by way of damages and destruction of all the blocks, dies, packing boxes, packing cartons/wrappers, packing boxes, packing material/cartons and stationery etc. used for infringing the aforesaid trade mark. In this very connection, the above I.A. has been filed praying for the following relief:

(2.) The plaintiff, a Private Company, claims to be the proprietor of the trade mark MANJU in respect of textile piece goods under Registration No. 483715 on 4th January, 1988 under the Trade and Merchandise Marks Act, 1958 (for short the "Act") valid and subsisting till 3rd January, 2002. According to the plaintiff Company, its sales in respect of textile piece goods, including blouse pieces exceeds Rs. 40 crores per year. The plaintiff allegedly came to know in the third week of October, 1995 that the defendants were selling "blouse pieces" under the infringing trade mark MANJU in the markets at Delhi in a clandestine manner, thus transgressing into the area of registration of the plaintiff's trade mark and the plaintiff's business by extending their business in respect blouse pieces also. Aggrieved by these activities of the defendants, the present suit has been filed by Sh. Kailash Kasera, Selling Agent for Delhi area and duly authorised signatory, seeking to restrain the defendants from dealing in the trade mark MANJU in respect of blouse pieces.

(3.) The defendants are contesting the suit inter alia on the ground that the present suit is a device adopted by M/s. Shiv Cotton Mills Pvt. Ltd. against whom an order of injunction is operating from using the trade name MANJU in respect of sari falls and blouse pieces. Sh. Kailash Kasera is neither authorised nor competent to sign, verify or file any suit on behalf of the plaintiff Company as required under Order 29 of the Civil Procedure Code It is also contended that the learned Counsel representing the plaintiff happened to be the Counsel also representing M/s. Shiv Cotton Mills Pvt. Ltd. before the trade mark Registry. The defendants, in fact, have been carrying on its trade under the trade name MANJU since 1968 and they are also registered proprietor of the trade name MANJU in respect of sari falls since 1968. Hence, the defendants are prior user. The plaintiffs have never sold its goods under the trade name MANJU and neither claims to be its proprietor prior to the filing of the suit. The defendants' first name is MANJU FALLS duly registered with the Establishment (Shop and Department) of the Delhi Administration since long. They are registered proprietor of the trade name MANJU in respect of sari falls and blouse pieces and other allied and cognate products. Therefore, neither the plaintiff nor anybody else could claim right over the blouse pieces etc. Trade name in favour of the plaintiff in respect of textile pieces goods does not entitle them to include blouse pieces also. It is claimed that if a trader or manufacturer who trades in or manufactures only one or more articles coming under a particular classification, such a trader or manufacturer cannot be permitted to enjoy monopoly and such a registration is liable to be rectified by limiting its ambit to the specific articles which really concern the trader or manufacturer. The defendants have also applied for rectification. The plaintiff Company itself is a wrong-doer and no evidence has been shown to substantiate the claim made by the plaintiff in spite of objections taken in the written statement.