SHELKE BEVARAGES PVT LTD Vs. RASIKLAL MANIKCHAND DHARIWAL

JUDGEMENT

(1.) This appeal arises from the order dated 19.11.2009 whereby the Notice of Motion No.3709 of 2009 in Suit No.2516 of 2009 has been made absolute in terms of prayer clauses (a) to (c). The facts of the case, in brief, are thus:

(2.) The plaintiffs (respondents herein) claimed that plaintiff No.1 Mr. Rasiklal Manikchand Dhariwal, in or about the year 2001 invented a method of producing Oxygen Enriched Packaged Drinking Water and an Apparatus used therefor. The said invention was fully secured by Indian Patent under the Indian Patents Act 1970. Patent No.204086 was granted under the Patent Certificate dated 26.12.2006 to Shri Rasiklal Manikchand Dariwal, pursuant to his application bearing No. 254/MUM/2002 dated 15.03.2002. According to plaintiff No.1, in the year 2002 he started processing, marketing and dealing in innovative "Oxygen Enriched Healthy Packaged Drinking Water" of a Unique Purity and Utility. The plaintiff No.1 adopted distinctive mark "OXYRICH" which was registered as a Trade Mark under the Certificate dated 01.09.2005 under the Trade Marks Act, 1999 in respect of mineral, aerated and packaged drinking water and other nonalcoholic drinks, syrups and other preparations for making beverages, Beer, Ale and Porter. It is the case of plaintiff No.1 that as the Karta of R.M. Dhariwal (Hindu undivided family), he entered into registered user Agreement dated 18.10.2005 with plaintiff No. 1's company known as Dhariwal Industries Limited to grant nonexclusive right to user company for using the trade marks "MANIKCHAND" and "OXYRICH" in conjunction i.e. "MANIKCHAND OXYRICH" in respect of packaged drinking water. Thus, the Company (the 2nd plaintiff) was authorised the user invention in consideration of royalty payable under the Royalty Agreement. Further, according to the plaintiffs, the services of a designer/artist were availed to create a label registered as copyright on 06.08.2007 in favour of Shri Rasiklal Manikchand Dhariwal under title "MANIKCHAND OXYRICH HEALTHY DRINKING WATER". After advertising of the product, valuable goodwill and reputation accrued to it.

(3.) The plaintiffs further contended that in June 2009 they noticed that the defendants had commenced bottling and marketing packaged drinking water by adopting and/or using the artistic Trade Mark label having identical colour scheme, getup, design and layout which is deceptively similar to the plaintiffs' artistic label and registered Trade Mark. Therefore, the plaintiffs through an Advocate's notice dated 19.06.2009 sought to restrain the defendants from infringing their registered Copy Right and Trade Mark and claimed a sum of Rs.5,00,000/as damages for violating intellectual property rights.