MADURA COATS LTD Vs. CHETAN DEV

JUDGEMENT

(1.) This is defendants appeal against whom the suit for declaration and the grant of the permanent injunction has been decreed by the trial Court.

(2.) The plaintiff Chetan Dev, proprietor, M/s. Ahuja Thread Mills, filed the suit for a declaration to the effect that the alleged infringement to which the threats of the defendants towards the plaintiff relate, was, in fact, not the infringement of any legal, rights of the defendants, and permanent injunction restraining them from continuing their threats towards the plaintiff and desisting therefrom. It was alleged by the plaintiff that he was the sole proprietor of M/s. Ahuja Thread Mills, and dealt with the manufacture and sale of threads for the last more than two years while the defendants were the manufacturers and representatives of M/s. Madura Coats Ltd., also dealing with the sale of threads. It was also alleged that the plaintiff, about two years ago, manufactured thread with the trade mark "Swastik Super-Shine 50" with the insignia of Swastik, and this trade mark used by him was his exclusive right of property and that the defendants had no right to the same. It was further alleged that M/s. Madura Coats Ltd. manufactured threads with the trade mark "Coats Super-Sheen" with the insignia of Sangal (chain in circle). They sold their goods in a pack of one dozen. They illegally claiming themselves to be the owners of the copyright of the threads manufactured by the plaintiff, had started giving threats while no such question arose because there was no similarity between the two threads. Even a layman could understand which one was the product of the plaintiff and which one was that of the Madura Coats Ltd. Thus, it was asserted that the plaintiff had every right to use the trade mark and that it had not infringed the rights of the defendantsatall. On these facts, it was alleged that the threats issued to the plaintiff by virtue of the notice, dated October 7, 1981, Exhibit P.6, were groundless. It was from that letter that the cause of action arose to him to file the present suit. In the plaint, the suit was stated to have been filed under S.60 of the Copyright Act, but now, it is the common case of the parties that such a suit was contemplated only under S.120 of the Trade and Merchandise Marks Act, (hereinafter called the Act). In the written statement, it was pleaded that the plaintiff was using the trade mark in relation to the threads marketed by him which trade mark was deceptively similar to the registered No. 135622 in the name J and P Coats Limited, an English Company. It was also contended that the plaintiff was selling threads under the trade mark "Swastik Super-Shine" which was deceptively similar to the trade mark of J and P Coats Limited. It was pleaded that the defendants or any of them had never claimed any rights of ownership in any copyright and that defendant No. 4 being a licensee of J and P Coats Limited used the registered trade mark of the company in relation to the threads manufactured by it in accordance with the specifications and standards of quality laid down by the Company. When the defendants learnt that the plaintiff was using the trade mark deceptively similar to the trade mark of J and P Coats Ltd., they requested the plaintiff to stop such misuse so as to ensure that no infringement was committed by a third party in regard to their trade mark. It was specifically pleaded that no cause of action had arisen to the plaintiff against them and that he could not claim any relief for the injury he might have to suffer as a consequence of his being stopped from continuing his unlawful activities in infringing their trade mark. In the replication filed on behalf of the plaintiff, the averments made in the plaint were reiterated. However, on the pleadings of the parties, the trial Court framed the following issues : 1. Whether the plaintiff is not doing infringement of any trade mark rights of the defendants? 2. Whether the plaintiff is entitled to the relief claimed for? 3. Relief. Under issue No. 1, it was concluded that the plaintiff was not infringing the trade mark rights of the defendants. Thus, the said issue was decided in favour of the plaintiff. Issue No. 2 was also decided in his favour. As a result, his suit was decreed. Dissatisfied with the same, the defendants have come up in appeal to this Court.

(3.) The learned counsel for the appellants contended that proper issues were not framed by the trial Court in the present case. As a matter of fact, submitted the learned counsel, the plaintiff had no cause of action to file the present suit as only the letter dated October 7, 1981, Exh. P. 6, was written to him to draw his attention, to the lapse. The plaintiff did not file any suit for damages as such. Under the circumstances, the trial Court could not go into the question of non-infringement of the trade mark of the defendants. According to the learned counsel, the findings given by the trial Court, in this behalf, will stand in the way of the defendants as and when they file a suit as contemplated under S.29 of the Act. Thus, argued the counsel, the finding in regard to the non-infringement of the trade mark rights of the defendants by the plaintiff, was uncalled for. On merits, it was submitted that the findings of the trial Court are wrong, illegal and against the evidence on the record. On the other hand, the learned counsel for the plaintiff-respondent submitted that for holding that the threats given by the defendants were justifiable, the Court has to go into the merits of the case to see whether there was any infringement of the trade mark of the defendants or not and, therefore, the findings given by the trial Court, in this behalf, are legal and within the scope of the suit.