KAILASHBEN GUNVANTLAL THAKKER Vs. DEEPAK OIL MILLS

JUDGEMENT

(1.) THE present appeals are directed against the order dated 18. 03. 2009 passed by the learned District Judge, below application Exh. 5 for temporary injunction, whereby the injunction as prayed by the plaintiffs has been granted restraining the defendants therein from selling or using the name of "deepak" or Deepak Kapasia Tel and Khol and are further restrained from using the said artwork/label.

(2.) IT appears that Regular Civil Suit No. 6/08 came to be filed one Chirag Kantilal Thakkar in capacity as the partner of Deepak Oil Mills under the Trademark Act and Passing off (parties to the proceedings for the sake of convenience shall be referred as per their status in the Suit before the Trial Court ). In the Suit, as per the plaintiffs, they are selling Deepak Kapasiya Khol for three decades. Such product is known as Deepak Khol and plaintiffs have also got registration of the said Trademark with the Registrar of Trademarks. As per plaintiffs, one of the partner was Satishchandra and he was also managing the work of registration and the legal proceedings of the firm and he was knowing that the label Deepak Khol is registered under the Trademark Act, 1999 (hereinafter referred to as 'the Act') and the same is also registered as copyright. It is the case of the plaintiffs that such label is being printed or attached on the gunny bags and the business and reputation has been created on that basis and it is having a huge turnover of about 16 crores and the defendants are doing the business of Kapasiya Tel and Khol by using the word "deepak", therefore, they deserve to be restrained from manufacturing and selling the product by using the word "deepak", therefore, the Suit has been filed for the relief that the defendants be restrained permanently from using the word "deepak" in doing of the business of Khol and they be further restrained from using the artwork/label of Deepak Kapasiya Tel or Khol or the sticker or photograph similar to which is being used by the plaintiffs. It is also prayed in the Suit for restraining the defendants from selling the product of Deepak Kapasiya Khol by passing off the label, photograph, stencil mark, etc. It appears that in the Suit, an application for temporary injunction was submitted being Exh. 5. The learned District Judge issued notice upon the said application. The defendants appeared in response thereto and resisted the Suit and contended inter alia that the properties of Deepak Oil Mills, a partnership firm, is practically distributed amongst its partners. It has stopped the manufacturing activities of any Khol or oil and the said aspect has been suppressed by the plaintiffs in the Suit. It was submitted that there are other products in the market sold as Deepak Khol. It was also contended that at the time when there was distribution of the assets of the firm, all partners were permitted to use word "deepak" and other partners are also using the word "deepak" and selling the product, therefore, the Suit is instituted by the plaintiffs with malafide purpose and there is no infringement of any Trademark Act or Copyright Act or Passing off and it was submitted that the injunction does not deserve to be granted and the application for injunction deserves to be dismissed.

(3.) THE learned Trial Judge after hearing both the sides, found that there is no suppression of material fact and there is prima facie case with the plaintiffs for satisfying the Court that there is infringement of the Trademark, Copyright and Passing Off and the Trial Court also found that if the defendants are not restrained from using the Trademark, Labels, Stencil, etc. , it will certainly affect the business of the plaintiff firm, therefore, granted interim injunction as prayed by the plaintiffs. It is under these circumstances, the defendants have approached to this Court by way of the present appeals.