AMIR BIRI FACTORY Vs. MOHD. ASLAM

JUDGEMENT

(1.) The order of temporary injunction passed ex parte was sought to be vacated at the behest of the defendant/respondent on an application under Order 39 Rule 4 of the Code of Civil Procedure alleging not only that the application for temporary injunction contained misleading statements but also on the ground of suppression of material facts. The plaintiffs/appellants filed the instant suit seeking a decree for permanent injunction restraining the defendant/respondent from in any manner infringing the plaintiffs/appellants" registered label mark "MAJDUR BIRI" by using the mark which is identical and deceptively similar thereto and also decree for perpetual injunction restraining the defendants from manufacturing, selling, stocking, offering for sale Bidis under the mark "MAZDOOR" or any other trademark which is identical or deceptively similar to the appellant's mark "MAJDUR".

(2.) It is averred in the plaint as well as the application for temporary injunction that the appellant no. 1 is a leading manufacturer, trader and merchant of the Biris under the trade name and style of "MAJDUR BIRI No. 444" wherein the numerical No. "444" denotes the high quality of Biris containing the high quality of Tobacco Flakes. Initially, the appellant no.1 started manufacturing biris under the name and style of 961 No. Tara Biri" from the year 1997 and subsequently started manufacturing and selling the Biris under the name and style of "MAJDUR BIRI" at the contemporaneous time. The appellant no. 1 adopted the brand and the label "MAJDUR BIRI" with the unique get up and colour combination and acquire d an immense reputation and goodwill in the market inculcating a sense of high quality product in the consumers. The statutory recognition of the said label were received by the appellant no. 1 in the year 1999 and subsequently a registration certificate was issued in the year 2008 which confers an exclusive right upon the said appellant no.1 to use the aforesaid trademark. Gradually with the increase of the reputations of the said brand, the appellant no.1 applied afresh for registration of the brand and label "MAJDUR BIRI" without any restrictions which was advertised before acceptance in the Trademark Journal No. 1538. Over the span of time the brand and the label i.e., "MAJDUR BIRI" acquired an immense reputation and goodwill which would be evident from the turnover as a distinctive label and the registration of the trademark associated with the appellant no. 1. The defendant/respondent has adopted and copied the label and the trademark which is identical and deceptively similar name and the package in which the said goods are sold is entirely identical to the appellant's well - known and distinctive name and the label. Such attempt of the defendant/respondent in not only adopting the trade name but also selling in an identical get up in a package dishonestly and selling the said products within the State of West Bengal and the other part of the country. It is further averred in the plaint that the user of the offending label is likely to make a confusion and/or a deception amongst members of the public and of the trade as to an association, nexus and trade connection between the plaintiffs/appellants and the defendant/respondent as if it is a same product as that of the plaintiffs/appellants.

(3.) On the backdrop of the aforesaid facts pleaded in the plaint as well as the application for temporary injunction an ad interim order of injunction was passed on 26/6/2012 which was operative till 4 th July, 2012; the said ex parte order of injunction was extended from time to time until 23/7/2012. The application was made returnable on 17 th July, 2012 and on the said date the affidavit of service was filed by the plaintiffs/appellants and after being satisfied the Court confirmed the ad interim order to operate till the disposal of the suit.