P L LAMBA Vs. KWALITY ICE CREAM CO

JUDGEMENT

(1.) AGGRIEVED against an order rejecting the injunction application filed by the plaintiffs- appellants, the plaintiff have filed the present first appeal from order, which has been admitted on 10.8.1990. On the interim matter counter-affidavit and rejoinder-affidavit have been exchanged between the parties and the learned counsel for the parties have been heard in detail.

(2.) ADMITTEDLY, the plaintiffs- appellants are the exclusive proprietors of the registered trade mark "Kwality" under which brand name they manufacture Ice-Cream. The appellants are also registered proprietors of the said trade mark, as per the Indian Trade and Merchandise Marks Act, 1958 in respect of manufacture of Ice-Cream on sticks and Ice-Cream powder for sale in various States of India as well as in the territories of Jammu and Kashmir. They have filed copies of registration certificate also accordingly. That the Ice-Cream products of the appellants relate to the Ice- Cream sold by the appellants in a very extensive market and it is claimed that by virtue of its high standard and quality they have earned "Good-Will" of the public at large and the annual sale of Ice-Cream under the said trade mark "Kwality" is to the tune of Thirty crores.

(3.) I have carefully gone through the earlier order dated 9/10/1987 as well as the impugned order dated 27/2/1990. It is surprising that when the dispute between the parties relates to the same subject-matter, when the defendants-respondents filed Suit No. 19 of 1987 and when on an injunction application made by the defendants- respondents, who were plaintiffs in that case, the Court refused to grant injunction and subsequently when the present plaintiffs-appellants came to file Suit no. 1 of 1988, they moved an injunction application again against the defendants about the same subject-matter, which too has been rejected by the trial Court by the impugned order. That apart, I have gone through the reasoning given by the trial Court in its order dated 27/2/1990 and have carefully considered the submissions made by the learned counsel for the parties as well as have weighed the equitie of the case. Besides this, the plaintiff's are admittedly using the Trade Mark which is registered since 1957, whereas the defendants-respondents are using the same since 1977. On a consideration of the entire facts and the circumstances of the case I consider it expedient and accordingly in the interest of justice issue and interim injunction against the defendants-respondents, restraining them, their servants, agents, stockists, dealers and all other persons acting on their behalf from using the Trade "Kwality" in relation to the manufacture or sale of Ice-Cream or from marketing the same deceptively similar to the plaintiffs registered Trade Mark "Kwality" and further restraining them, their servants, agents, stockists, dealers and all other persons acting on their behalf from passing off their goods in the trading style of plaintiff- appellants.