ARUN DIGAMBER VARANGAONKAR Vs. KHARPE GRUH UDYOG

JUDGEMENT

(1.) THE defendants by this chamber summons pray for revocation of leave granted ex parte under Clause 12 of the Letters Patent.

(2.) ARUN Digamber Varangaonkar, the plaintiff has filed the suit before this Court on Original Side against the defendants praying therein that defendants by themselves, their servants, agents, stockists and distributors be restrained by perpetual injunction from using the house-cum-trade mark being the device of a crude house-cum-roof top or any other mark which is deceptively similar to the trade mark of the plaintiff being the device of a triangular roof top with chimney of the plaintiff in relation to defendants masala product and spices preparation so as to pass off and/or likely to pass off and/or enable others to pass off the said preparation as and for the preparation of the plaintiff bearing their trademark GHARKUL and device mark aforesaid. The plaintiff also prays that defendants be restrained by perpetual injunction from using the label or package being Exhibit O and P annexed to the plaint which is deceptively similar to and/or a colourable imitation of the package/carton/label of plaintiff being Exhibit L and M annexed to the plaint so as to pass off and/or likely to pass off and/or enable to pass off defendants preparations as advertisement for the preparation of plaintiff. The plaintiff has also sought perpetual injunction against the defendants from publishing, printing and causing to be printed and/or using whether in relation to goods or not the infringed piratical work as depicted in Exhibit O and P annexed to the plaint and thereby infringing or causing to be infringed the original artistic work of plaintiff and thereby committing an infringement of the copy right of the plaintiffs said original artistic work. A decree of Rs. 2 lacs is also prayed by the plaintiff against the defendants by way of damages for the use of the impugned trademark and device of the label, carton and package complained.

(3.) IN the plaint the plaintiff has averred that he carries business as sole proprietor in the name and style of M/s. Gharkul Utpadane at Badnera Road, Amravati. He resides at Amravati and also resides at 101-A, Garden View, Borivali (East), Bombay. The plaintiff manufactures and markets spices, masalas and condiment powders meant for cooking purposes for both vegetarian and non-vegetarian dishes and pickles. These preparations are sold in Maharashtra including Bombay and in other States of Karnataka, Andhra Pradesh, Madhya Pradesh and Gujarat. According to plaintiff the defendants carry on business inter alia of manufacturing and marketing spices, masalas and condiment powders used for cooking purposes and the defendants said preparations are sold in Amravati and also at Bombay. The plaintiff avers in the plaint that with effect from 12th August 86 the firms preparations such as mutton-masala and various kinds of similar food preparations under the trade mark GHARKUL and GHARKUL UTPADANE were placed in the market and the words GHARKUL and GHARKUL UTPADANE in the Roman script as also the word GHARKUL in Devnagri script were and are used as trademark for the said preparations of the plaintiff. It is the case of the plaintiff that in combination with the words Gharkul and Gharkul Utpadane uses and original artistic work which is a distinctively triangular shaped device of house-cum-roof top with chimney which original artistic work-cum trade mark has been used by the plaintiff and his predecessor in title since 12th August 1986. The plaintiff states in the plaint that the triangular device depicting a house top with chimney with the words Gharkul Utpadane rendered in the roman script and in the Devnagri script appears on all preparations of the plaintiffs or on all packages, cartons, letterheads and visiting cards of the plaintiff. According to plaintiff the word mark Gharkul and Gharkul Utpadane and the distinctive devices are trade marks which belong to him and plaintiff is the owner and proprietor of the said trade marks. According to him applications for registration of the various trade marks in the office of the Registrar of trade marks at Bombay have been filed, details of which have been given in the plaint and the said applications are pending in the trade marks Registrars office in Bombay. The plaintiff claims to have acquired considerable goodwill and good reputation amongst the trade and the consumers in relation to spices, food preparations and pickles bearing the trade mark Gharkul. Gharkul Utpadane and the distinctive device referred above. The grievance of the plaintiff is that the defendants have introduced in the market preparations packed in packages and/or cartons being the same get-up, same colour scheme and same scheme of arrangement as appears on the genuine cartons and packages of the plaintiff. These packages also have the main feature of the red colour background with the device of crude house-cum-roof top with chimney in yellow and white background and in place of trademark GHARKUL the word PHUL CHHAP is rendered in Devnagri script in the same yellow colour as used by the plaintiff. By this act of the defendants the semi-illiterate or illiterate consumers of the plaintiff are likely to be confused or deceived. The plaintiff caused enquiry and found that these preparations of the defendants were available in Bombay and caused its purchases to be made. Two cash memos in respect of the test purchases made by the plaintiff from Messrs. Amruta Traders have been placed on record to demonstrate the preparations being the impugned trademark and infringing copy of artistic work of the plaintiff. Plaintiff before filing the suit served a notice to the defendants through its advocate on 28th July- 93 and they were asked to desist from using the crude house-cum-roof top and get-up, colour scheme and scheme of arrangement similar to that of plaintiff. The defendants through their trademark attorney replied to the notice given by the plaintiff and denied and disputed plaintiffs claims and contentions. In paragraph 27 of the plaint it is averred by the plaintiff that part of the cause of action of the manufacture of the impugned preparations bearing the impugned trade mark and impugned get-up of the package complained of has arisen in Amravati outside local limit of jurisdiction of this Court, though material part of cause of action has accrued in Bombay and accordingly sought leave under Clause 12 of the Letters Patent.