JAYA RAJ V Vs. BHAVANI SWEETS AND BAKERY

JUDGEMENT

(1.) This is an appeal filed against the order dated 16th April, 2001 in I.A.No. 274 of 2001 in O.S.No. 10 of 2001 on the file of the I Additional District Judge, Warangal.

(2.) The respondent/plaintiff filed the suit seeking relief of permanent injunction restraining the defendant from committing any infringement of his trademark Bhavani Khara with the device of plaintiff's or any other mark deceptively similar thereto and passing of any Khara Packets with labels affixed thereon which is deceptively similar to the label used by the plaintiff. He also sought for the relief of a direction to the defendant to render a true and faithful account of the profits earned by the defendant through the manufacture and sale of packets Bhavani Khara and direct such profits to be paid to the plaintiff by way of damages for the infringement of plaintiff's trademark and passing of all goods by the defendant. He also filed a petition in I.A. No. 274 of 2001 under Order 39 Rules 1 and 2 C.P.C. seeking an interim injunction restraining the defendant from manufacturing and marketing of Bhavani Khara in packages carrying the label containing the device of the pictorial description and bell monogram accompanied by the name Bhavani Khara or any other colourable imitation there of etc. The learned Additional District Judge granted an ex parte ad-interim injunction in favour of the plaintiff and ordered further notice to the defendant. Aggrieved by the said order dated 16th April, 2001 the defendant preferred the present appeal.

(3.) In the impugned order the learned Additional District Judge observed that the plaintiff is the prior user of the label Bhavani Khara, he started business much prior to the respondent and in fact the respondent started business only on 01-11-2000, he also observed in his order that there is prima facie case in favour of the petitioner-plaintiff, the balance of convenience is also in favour of the plaintiff as he is the prior user and he will suffer irreparable loss if the respondent is not restrained from selling his product in the name and style of Bhavani Khara. Therefore, the learned Additional District Judge felt that it is a fit case to dispense with notice to the respondent and requires immediate orders so as to prevent the respondent from passing off of the produce in the market.