ASHA SOAP FACTORY Vs. DHANTHAK AND COMPANY

JUDGEMENT

(1.) This is an Appeal from Order dated 18th March, 1983 passed by the learned Judge of the City Civil Court, Bombay, in Notice of Motion No. 503 of 1983 taken out by respondent No. 1 (hereinafter referred to as `the plaintiffs) in Short Cause Suit No. 601 of 1983.

(2.) The facts and circumstances under which the present appeal came to be preferred are that the plaintiffs filed a suit in the trial Court for permanent injunction against the present appellants (hereinafter referred to 89 `the defendant No. 1) from manufacturing washing soaps bearing their trade mark or trade mark indentical or similar or deceptively similar to the plaintiffs trade mark and for permanent injunction restraining respondent No. 2 (hereinafter referred to as `the Defendant No. 2) from selling such soaps and further ordering defendant Nos. 1 and 2 to render accounts of the business done in selling such soaps and ordering them to pay the profits derived from such business to the plaintiffs. The case of the plaintiffs was that they are the manufacturers of a kind of washing soap with a particular and distinguished mark of their product since the year 1952. According, to them this distinguished mark was registered under the Trade and Merchandise Marks Act, 1958 on 6-6-1977, the registration being effective from 21st March, 1975. The trade mark consisted of two letters "BB" each within separate circles. This registration was initially for a period of seven years and was renewed in the year 1982 for a further period of seven years. They alleged that defendant No. 1 started manufacturing soaps having similar shape and having a mark of two figures "88" each within separate circles thus similar or deceptively similar to the trade mark of the plaintiffs with a mala fide intention to take advantage of the popularity of the plaintiffs trade mark and with dishonest intention to trade upon the plaintiffs goodwill and reputation. Defendant No. 2 was selling the said soaps manufactured by defendant No. 1 in Kurla. The plaintiffs contended that the soaps manufactured by defendant No. 1 were of much inferior quality and, therefore, they would lose their reputation and goodwill if such soaps were allowed to be sold in the market. The case of defendant No. 1 was that there could not be a trade mark regarding shape of soap or with regard to geometrical designs such as circles. They contended that they had got their trade mark "88" registered as on 24th March, 1966 and the said registration is still valid and further that they were using the said trade mark since the year 1956. The also contended that the plaintiffs were aware of these facts which they suppressed from the trial Court.

(3.) A notice of motion was taken out by the plaintiffs, in the suit for certain reliefs and after the parties filed their documents and affidavits and after affording a reasonable opportunity of being heard the learned trial Judge by his impugned order made the Notice of Motion absolute in terms of prayer Clauses (c) and (d) thereby ordering that during the hearing and final disposal of the suit, defendant No. 1 by themselves, their proprietors, servants and agents be restrained by a preventive interim injunction and order from manufacturing and/or producing for sale of the said washing soaps bearing a trade mark containing letters "BB" in two circles (each is one circle) or numericals encircled in two circles similar to and/or, identical with and/or deceptively similar to and/or indentical with the plaintiffs said registered trade mark "BB" in two circles, duly registered under Trade Mark No. 303948 and/or from selling any such fake products under such infringing trade mark and/or from passing off their products as the products of the plaintiffs and further that during the hearing and till final disposal of the suit, defendant No. 2 by themselves, their servants, agents and officers be restrained by a preventive interim injunction and order from selling the said fake goods viz., the products of defendants No. 1 referred to above and bearing such infringing trade mark thereby violating plaintiffs Registered Trade Mark No. 303948. Aggrieved by this order defendant No. 1 preferred the present appeal.