VIKAS MANUFACTURING COMPANY Vs. BHARAJ MANUFACTURING COMPANY REGD

JUDGEMENT

(1.) THE respondent, M/s. Bharaj Manufacturing Co. , filed a snit for infringement and passing off, under Sections 105 and 106 of the Trade and Merchandise Marks Act, (hereinafter called the Marks Act), the Copyright Act, and the Designs Act, to restrain the present appellant from infringing his trade mark, BEMCO and from using the trade mark VEMCO or any other mark, deceptively similar to BEMCO in manufacturing locks, from infringing this registered design of the locks as well as from infringing the registered label on the carton under the Copyright Act, in the Court of the District' Judge, Jullundur. During the pendency of this suit, an application was filed under O. XXXIX Rr. 1 and 2, read with Section 151 of Civil P. C. , for the issuance of an interim injunction. This application was allowed by the order of the Additional District Judge, Jullundur, vide his order dated January 10, 1979, and the present appellant was restrained from using the trade mark VEMCO or any other deceptively similar trade mark of BEMCO of the respondent, in the manufacture of locks. The appellant was also restrained from using the registred design of the respondent as well as from using the carton with the label similar to that of the respondent which was registered under the Copyright Act, till the decision of the suit. The present appeal is directed against the said order. The application had been filed on November 24, 1978, which was fixed for December 7, 1978, for the appearance of the appellant. He had been served along with a copy of the application on November 29, 1978. As the presiding officer was on leave on December 7, 1978, the application was taken up the next day when the appellant was ordered to file the rely on or before December 23, 1978 As the reply was not filed on the said date, the case was again adjourned to January 8, 1979, and the appellant was burdened with Rs. 15/- as costs. Instead of filing the reply, the appellant submitted an application on January 8, 1979, under Section 30 read with O. XI R. 14 and Section 151 of Civil P. C. , for direction to the respondent to fi1e the original certificate of registration of the trade mark in his favour. That application was dismissed. It is also not disputed that the appellant neither filed the reply to the application of the respondent for interim injunction, nor the written statement in the main suit. It was in these circumstances; that the impugned order was passed on January 10, 1979.

(2.) IT is the admitted ease of the parties that the trade mark BEMCO of the respondent in respect of manufacture and sale of locks was registered by the Registrar under the Marks Act in 1972. The label with the words "bemco KAMAL TAL" which is used on the cartons by the respondent and the design of the locks are also 'registered under the Copyright Act and the Designs Act. On the other hand, the trade mark VEMCO, as used by the appellant, and the design of the lock are not yet registered under the Marks Act and the Designs And. on1y the label, as used on the cartons by the appellant was registered under the Copyright Act on September 18, 1978. At the time of the arguments, it was also pointed out by the learned counsel for the respondent, that the application of the appellant, for the registration of the design of the locks had also been dismissed in May, 1979 and the application filed by the respondent for the cancellation of the appellants copyright regarding label (the carton) had not been decided by the Registrar under the Copyright Act so far,. as no reply has been filed by the appellant.

(3.) ACCORDING to the averments in the application for interim injunction the respondent is a renowned manufacturer of locks and is manufacturing and selling the locks under the trade. mark BEMCO since 1972. His trade mark in respect of the padlocks was registered under the Marks Act on February 12, 1973. His label "bemco KAMAL TAL" used on cartons for packing of the locks for registered under the Copyright Act and so was the design of the lock under the Designs Act, On account of the large and extensive scale of the locks manufactured by the respondent under the registered trade mark, design and label this registered mark had become popular and acquired a distinctive character in the eyes of the public. It was also averred that the buyers of the locks manufactured by the respondent include the persons unacquainted or imperfectly acquainted with English alphabet and they identify the locks manufactured by the respondent by appearance of the aforesaid trade mark, design and the colour scheme. The respondent came to know on November 23, 1978, that the appellant was manufacturing, selling and offering for sale his locks under the trade mark VEMCO under the same design and label which was deceptively similar to the trade mark design and label of the locks manufactured and sold by the respondent and thus causing confusion in the public mind. In these circumstances, according to the respondent, he was suffering a huge loss in his business and there was a prima facie ease for the issuance of an interim injunction during the pendency of the suit. All these averments were supported by affidavit by Bachittar Singh, one of the partners of the respondent. As referred to above, no reply was filed on behalf of the appellant and thus, there was no alternative for the Additional District judge but to proceed on the assumption that the averment made by the respondent in his petition and in the affidavit were correct, The Additional District Judge before issuing the interim injunction also closely Perused the trade mark, the design and the label on the cartons as used by the respondent for the manufacture of the locks as well as the trade mark, the label and the design used by the appellant in the manufacture of hie locks, and came to the conclusion that there was a prima facie case in favour of the respondent.