SABKO INDUSTRIES Vs. AVON EMERY INDUSTRIES

JUDGEMENT

(1.) The instant Misc. Appeal has been filed by the defendant-appellant against the order dated 26.8.2006 passed by the learned Additional District Judge (Fast Track) No. 3, Jodhpur in Civil Misc. Case No. 5/2006, whereby, the learned Court-below has allowed the application for temporary injunction filed by the plaintiff-respondent under Order 39 Rules 1 and 2 read with Section 151 CPC in his favour while restraining the defendant-appellant and his Agents from using the Trade Mark "SABKO" or resemble to it on their products and also on the Letter-pads, Bills publishing Advertisement material in the News-papers.

(2.) Briefly stated the facts of the case are that it is alleged by the plaintiff- applicant that M/s Avon Emery Industries, Jodhpur is a registered partnership firm, which came into existence on 28.8.1974. The firm is carrying on the business of manufacturing and marketing of Emery Powder since 1974 and the firm used to sell his products to M/s Saboo Emery Stone, Jodhpur, which was also a partnership firm carrying on the business of manufacturing of Emery Stones and like other products i.e. all kinds of Emery Stones, Flour Mill Stones, Bonded Stones, Synthetic Stones, Emery Powder, Emery Grains, Flour Mills etc. having registration of the Trade Marks "SABKO" "Sabko Special" and "Saboo Special" under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as 'the Act of 1958'). That firm was by using the said Trade Marks on the products supplied by the plaintiff-applicant M/s Avon Emery Industries, after manufacturing and using the said Trade Marks "SABKO" "Saboo Special" and "Sabko Special" were supplying and selling the goods all over India.

(3.) The plaintiff-applicant further submitted that in the month of January, 1985, M/s Saboo Emery Stones, Jodhpur by way of agreement of assignment after taking the royalty amount Rs. 27,783.70 for using the said Trade Marks under the provisions of the Act of 1958 as provided in Chapter 'V' of the Act of 1958 authorized and constituted the plaintiff firm to use the said Trade Marks 'Sabko', 'Saboo Special' and 'Sabko Special' on their products and for selling and supplying the products in open market. In this way, it was stated that the plaintiff-applicant-firm became full authorized to use the said Trade Mark from predecessor in title since 1974 and from 1985, the plaintiff-applicant-firm became exclusive owner to use the above mentioned Trade Marks. It is further submitted that the plaintiff-firm earned good reputation and respect at national level market by using the said Trade Marks on their products. The defendant-firm was also aware of all these facts. The defendant- firm itself used to buy the said goods for sale from the plaintiff-firm or from his predecessor in title.