RIGHTWAY Vs. RIGHTWAYS FOOT WEAR

JUDGEMENT

(1.) IN a suit for infringement of Copyright, passing off of trademark and trade name, etc., the plaintiff has made two applications for restraining the defendants from using his trade name and trademark, etc.

(2.) FACTS relevant for the disposal of the interim applications are summarised as under :- The plaintiff is a firm which conducts partnership business. It is manufacturing footwears and travelling luggage and conducts sale of manufactured goods such as footwear, travelling luggage, etc. The said sale is conducted under the trademark 'Rightway' with device of Foot in a distinctive manner. This trade mark is used by the plaintiff since 1967. This trademark is written in a particular style and the plaintiff has applied for its registration under the provisions of law. The trade-mark and the goods sold by the plaintiff have acquired reputation with the public. Goods of the plaintiff are identified by the trade-mark under which they are sold because it has its own colour, scheme, design and lable. Huge amount has been invested by the plaintiff on publicity of its trade mark and trade name throughout, India. As a result of the plaintiffs investment, the plaintiffs trade-mark and trade name (sic) throughout India. As a result of the plaintiffs investment, the plaintiffs trade mark "rightway" has acquired good will and reputation and they conduct sales worth lacs of rupees. The defendants are said to be aware of all these facts and about the reputation the trade-mark and trade name of the plaintiff has acquired. They have started manufacturing and selling foot ware under the trademark 'Rightway Foot with a device of foot in exactly the same manner in which the plaintiff is using the trade- mark. The overall lay out, design, lettering style of "Rightway" mark used by the defendants is identical with that which is used by the plaintiff and the defendants are therefore by deceptive means using the goodwill, reputation of the plaintiffs firm by using "Rightway" lable. The defendants, are misrepresenting the customers about the "Rightway" trade-mark and trade name and are giving out that they are conducting business as associates of the plaintiff. The defendants are thereby passing off their goods as the goods of the plaintiff, These acts are said to be injurious to the interests of the plaintiff as they are intended to cause harm to the plaintiff and to their trade-mark. On this basis various reliefs restraining the defendants from using the trademark and trade-name is sought in the plaint.

(3.) ELABORATE arguments were heard. Mr. Baig for the plaintiff has submitted that the defendants are passing off their goods under the trade name which is used by the plaintiff continuously for a number of years and notwithstanding its registration, its use cannot be made by the other side. His contention is that in passing off of action registration of mark is not relevant, what is relevant is use of trademark for a longer period. He has relied on an authority of the Delhi High Court in Century Traders v. Roshan Lal Duggar and Co. AIR 1978 Delhi 250. It has been held by the Delhi High Court that user of the mark prior in point of time than the impugned user by the defendants was relevant and not the registration of the mark. It is the case of the defdts. that when they were purchasing goods for sale from the plaintiff, they were given signboard for being exhibited in Leh. The signboard was "Rightway Foot-ware" that means user of "Rightway Foot-ware" by the plaintiff is prior in time. As to whether giving of signboard to the defendants would create estoppel against them is a matter which can be considered in the main suit after the evidence is brought by the parties on record in support of their respective contentions. At this stage it is very difficult for this Court to uphold or reject the plea of estoppel raised by defdts. A prima facie view of the facts, as set out in the pleadings and documents is to be taken. From the reading of the written statement it is crystal clear that use of trade name "Rightway Foot-ware" is made by the plaintiff prior in time. Therefore, it is to be seen whether the defendants can pass off their goods under the same name to their customers and whether they can use it or not.