LAKHARA AND CO Vs. SHIVAKARAN BHANWAR LAL KILA

JUDGEMENT

(1.) This Civil Misc. Appeal challenges the order dated 8-1-1992 massed by the learned District Judge, whereby he allowed plaintiff-respondent's application filed under Order 39. R. 1, CPC and restrained the defendant-applicant through a temporary injunction till the final disposal of the related civil suit from selling the 'Bidees' with the photo, design and specialities having deceptive resemblance with the copyright trade mark of the label of 'Bidees', manufactured and sold by plaintiff-respondent.

(2.) Briefly the relevant facts are that on 12-11-1991, the respondent firm filed a suit in the court of learned District Judge, Churu against the appellant firm seeking the relief of perpetual injunction restraining the latter from selling the 'Bidees' under a label, which may have a deceptive resemblance with the trade mark of label of 'Bidees', manufactured and sold by the respondent firm, which has been registered under the Copyright Act vide registration No. A-39587/83. The respondent-firm averred that the appellant-firm has imitated its registered label of Bidees with an intention to defraud the customers and got printed the label of 'Battakh Chhap Bidi', which has a deceptive resemblance having similar photo, design, get up and the colour scheme and that the appellant firm is making infringement of respondent-firm's registered trade mark of 'Hans Chhap Bidi', which has acquired goodwill and reputation in the market. Thus, the act of the defendant firm is adversely affecting its business and has put it to financial losses. It was further averred that on 22-10-1991, the proprietor of the appellant-firm came to Churu for selling the 'Bidees' manufactured by it bearing 'Battakh Chhap Label'; that despite the protest of the respondent firm, the former said its 'Bidees' to many shop keepers in the town of Churu. The respondent-firm, therefore, prayed that the appellant firm be restrained through a perpetual injunction from selling the 'Bidees' manufactured by it under a label, which has deceptive resemblance with the registered trade mark of the respondent firm. Along with the suit, the respondent firm 'separately filed an application under Order 39, R. 1, CPC praying for temporary injunction, which was resisted by the appellant firm. The appellant firm pleaded its ignorance as to whether the plaintiff firm got the 'Hans Chhap Label' registered under the provisions for the Copyright Act for selling the 'Bidees' manufactured by them and asserted that the appellant firm is carrying on its business of manufacturing and selling hand made Bidees since the year 1979, for which a licence has also been issued from the Central Excise Department, Bikaner, which has been renewed from time to time; that the appellant firm got approved its label of Bidees having 'Battakh mark' and the design, which was approved by the said Department and that since then, the appellant firm is selling Bidees under the said label openly and without interference in the town of Ladnu and other nearby villages of district Nagaur. It was also asserted that as a matter of fact, since the trade mark and the label of 'Battakh Chhap' had acquired goodwill and reputation in the market, the respondent firm imitated the 'Battakh Chhap' trade mark and label and got the trade mark and label of 'Hans Chhap' approved by the Central Excise Department and further got the same registered under the Copyright Act without intimating the appellant firm. It was further asserted that the proprietor of the appellant firm did not come to Churu for selling its Bidees and that no cause of action arose in district Churu and, as such, the District Court, Churu had no jurisdiction to try the suit. The appellant firm maintained that it was its fundamental and civil right to carry on the trade of manufacturing and selling Bidees; that the respondent firm had no prima facie else in its favour and that the Scales of convenience also did not tilt in its favour. On the other hand, if the respondent firm was not restrained through temporary injunction from carrying on it business under the trade mark and label of 'Hans Chhap Bidi', the appellant firm would incur irreparable loss.

(3.) The learned District Judge, Churl after perusing the pleadings and documents and hearing the parties held that the respondent firm had a prima facie case in its favour that the balance of convenience as also the factor of irreparable loss also were in its favour and accordingly, by his impugned order, restrained the appellant firm through a temporary injunction in the manner detailed above. Hence, this appeal.