SURENDRA KUMAR MAINGI Vs. DODHA HOUSE

JUDGEMENT

(1.) This appeal under Order 43 Rule 1 (r) C.P.C. has been preferred by defendant No. 1 against the order dated 17-1-1992 of Ist Addl. District Judge, Ghaziabad by which the application 5-C filed by the plaintiff was allowed and the defendants, their dealers, stockists and distributors were restrained from infringing the plaintiff's copyright existing in art work, label and wrapper by using these as wrappers for Maingi's Todha. They were further restrained from passing off their goods as goods of plaintiff under trade mark Maingi's Todha.

(2.) M/s. Dodha, House, Kot Ka pura, through its partner Subhash Chandra Vig filed O. S. No. 22 of 1990 against Surendra Kumar Maingi, Proprietor of M/s. V. R. K. Todha Sweet House, Kot Ka Pura and Pallu Ram for permanent injunction restraining them from infringing plaintiff's copyright existing in the art work, label and wrapper duly registered under the Indian Copyright Act by using these in the art work involved in defendant's label and wrappers titled Maingi's Todha Sweet, from infringing the trade name Dodha House of the plaintiff by using the word Todha as part of defendant trade name and also from passing off their goods as goods of the plaintiff under the trade mark Todha.

(3.) The case set up by the plaintiff in the plaint is as follows. The plaintiff is a firm which was registerd under the Indian Partnership Act and Subhash Chandra Vig is one of its partners. The plaintiff is engaged in the business of manufacturing confectionary sweet-meats under the trade mark Dodha and has been carrying on his business under the trade name Dodha House, which trade mark was adopted in the Year 1912 and is being used continuously since then. The plaintiff's registered office is at Kot Ka Pura in District Faridkot and the branches are in Ludhiana, Delhi and Ghaziabad. The plaintiff's trade name Dodha House was duly registered on 15-1-1972 under the Trade and Merchandise Marks Act, 1958. The plaintiff is also owner of Royal Dodha Sweets and art work/label and wrapper of the same were registered under the copy right Act. Thus the plaintiff has acquired exclusive right to use the trade name Dodha House and also the aforesaid art work/labels/wrappers. The plaintiff has extensive business. The details of sales from 1947 onwards have been given in para 9 of the plaint which rose to Rs. 14,14,145.00 in 1989-90. The defendant No. 1 adopted trade name Todha with the word Maingi's as its prefix and is selling the aforesaid goods duly packed in Maingi's Todha label/wrapper in Kot Ka Pura since second week of September, 1990. The trade mark/trade name/label/wrapper and art work chosen by the defendant No. 1 is similar to that of the plaintiff in its composition colour, scheme and get-up etc. and it is a deliberate imitation. This is bound to cause deception and confusion in normal course of business activities of the parties. The defendants are passing off their goods and business as that of the plaintiff. The suit was accordingly filed for the reliefs mentioned above. The plaintiff also filed an application under Order 39 Rule 1 and 2 read with Section 151 C.P.C. praying that during the pendency of the suit the defendants be restrained from infringing the plaintiff's copyright existing in the art work/label and wrapper, from infringing the trade name Dodha House and from passing off their goods and business as goods of the plaintiff.