PREMWATI BANSAL Vs. GANPATI INTERNATIONAL

JUDGEMENT

(1.) The plaintiff has brought this suit under Sections 105 and 106 of the Trade and Merchandise Marks Act, 1958 as well as under Section 51 of the Indian Copyright Act, 1957 seeking the relief of permanent injunction and rendition of accounts. The case disclosed in the plaint is that the plaintiff is the proprietor of the trade mark 'HARIYALI LABEL' in relation to rice which was adopted on 1.4.1993 and has been continuously in use thereafter. It is averred that in order to acquire statutory rights for the trade mark HARIYALI LABEL, an application in Clause 30 of the Trade and Merchandise Marks Act, 1958 was filed on 9.8.1996 and this application is still pending. It is further averred that the plaintiff is the proprietor in the artistic feature of HARIYALI LABEL and that she holds its copyright. An application for registration under Section 45(1) of the Copyright Act was filed by her on 22.2.1999 and No Objection Certificate was granted by Registrar, Trade Marks on 7.7.1999. Since the plaint is dated 16.7.1999 it is obvious that this Certificate is springboard for the litigation. It is further averred that the trade mark HARIYALI LABEL has become distinctive to the plaintiff's goods, on account of its extensive and exclusive user. The plaintiff has further set out its sales figures commencing with the year 1992-93. It has thereafter been pleaded that considerable expenses have been incurred by the plaintiff towards its advertisement of the trade mark HARIYALI LABEL.

(2.) It is the plaintiff's case that defendant No. 2 of which defendant No. 1 is a sister concern was the commission agent of the plaintiff who used to sell rice bearing this trade mark and that the -defendant was fully aware about the use and reputation of the plaintiff in respect of the trade mark HARIYALI LABEL. On this premise it was pleaded that the use of this trade mark by the defendants could not be anything but a deliberate imitation. Keeping all this in perspective, it is the plaintiff's allegation that the public, when dealing with the defendant in respect of this product would in fact be misled into thinking that they were dealing with the plaintiff. Since both parties are rice dealers confusion in the mind of the public is certain to be caused.

(3.) It is further averred in the plaint that a criminal complaint under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 as well as under Sections 63 and 64 of the Indian Copyright Act, 1957 was filed against unknown persons and that the plaintiff effected seizure at the defendants premises of large quantity of spurious rice duly labelled "HARIYALI LABEL".