UCMAS MENTAL ARITHMETIC Vs. AKADEMI SEMPOA AND MENTAL

JUDGEMENT

(1.) The Defendants are the Applicants in Application No. 6371 of 2013. The Respondent/Plaintiff filed a Suit C.S. No. 835 of 2013 for Permanent Injunction restraining the Defendants 1 to 3, their men, servants or agents from in any manner commencing or carrying on the business of imparting any educational training in the form of Mental Arithmetic Programs designed as "Indian Abacus" or such other similar names to students, either by describing themselves as "Formerly UCMAS India" or otherwise, which business is similar to the established Abacus Training concepts adopted and perused by the Plaintiff all over the world through its National and State Master Franchisees in violation of the terms and conditions contained in the National Franchisee Agreement, dated 1.4.2006 executed between the Plaintiff and the Defendants 1 & 2 and for permanent injunction restraining the Defendants 1 to 3 from in any manner interfering with the running of the business of the Plaintiff through their National Franchisees, State Franchisees, Franchisees and Course Instructors in India relating to educational training based on the specially prepared program related to such training known as "Universal Concept Abacus & Mental Arithmetic System" ("UCMAS"), which is not the subject matter of this application and also filed Application No. 950 of 2013 seeking the relief of Temporary injunction in respect of the prayer as stated above and also obtained an Order of Ad-interim Injunction. The Applicants filed Application No. 6371 of 2013 to vacate the Temporary Injunction granted in favour of the Respondent/Plaintiff in A. No. 959 of 2013 in C.S. No. 835 of 2013.

(2.) The case of the Respondent/Plaintiff in the Suit is that the Plaintiff is the owner of the Intellectual property right over 'UCMAS Mental Development Programs' they have designed and conducted throughout India for several years. They have developed Abacus and made a unique program 'UCMAS Abacus & Mental Arithmetic' for children from age 4 to 13. The Plaintiff and the 1st Defendant represented by the 2nd Defendant entered into a National Franchise Agreement on 1.4.2006, by which the 1st Defendant was appointed as 'National Franchisee' for the Plaintiff for the whole of India for a period of 15 years and the 1st Plaintiff, by letter, dated 10.9.2013 informed the Plaintiff through e-mail his intention to surrender his rights under the National Franchise Agreement, dated 1.4.2006 and expressed his intention to terminate the 'Franchisee' of the Plaintiff Though, correspondents were exchanged between the Plaintiff and the 1st Defendant regarding the execution of the Deed of Undertaking by the Plaintiff and the Deed of Assignment by the 1st Defendant, the cause of action for the Suit arose when the Plaintiff came to know that the 1st Defendant acting through the 2nd Defendant, started the very same business under the name and style of 'Abacus India Private Limited' and started issuing Circulars/Notifications and pamphlets calling their Indian Abacus Products and Programs are the result of 14 years of background research and also claimed that the 3rd Defendant was formerly (UCMAS India) and they are the newly invented state of the art Indian Abacus devices with course materials for the children of age group 5 to 13 and the conduct of the Defendants in supporting the 3rd Defendant and imparting the very same technique used by the Plaintiff is contrary to Clauses 9.1 & 17 of the National Franchise Agreement, dated 1.4.2013 entered into between the Plaintiff and the Defendants and the Defendants had committed breach of contract and therefore, they are to be injuncted.

(3.) The Defendants filed Application No. 6371 of 2013 to vacate the order of Temporary Injunction, contending inter alia that the tools abacus and the program and training provided by the Respondent/Plaintiff are generic in nature and the Respondent/Plaintiff cannot claim any exclusive right over the same. It is further stated that the generic tool consisting of a frame with beads has been used for thousand of years in China and other eastern countries for doing arithmetical calculations and there is no change in the form of the tool for all these years and in India, there are more than 300 brands and innumerable unorganized Abacus Course operators are using this generic abacus and the Respondent/Plaintiff cannot claim to be the sole and exclusive proprietor of the abacus.