K M OOSMAN AND COMPANY ALIAS K M KHADIR BROTHERS BY MANAGING PROPRIETOR, K M OOSMAN SAHIB Vs. KABDUL MALIK SAHIB

JUDGEMENT

(1.) These two appeals arise out of two cross suits, O.S. Nos. 13 of 1944 and 14 of 1944, filed by the respective parties for declaration of their title in the trade-marks and for an injunction restraining the other parties from interfering with their rights. One K.A. Kadir Sahib, father of defendants 2 to 6 and husband of the 7 defendant carried on business in partnership with another, S. A. Sattar Sahib, under the name and style of " S.A. Sattar and K. A. Kadir and Co." Sattar Sahib died in June 1938. Kadir Sahib, the other partner filed O.S. No. 363 of 1938 on the file of the District Murisiff's Court, Vellore, for a declaration that the firm of " S.A. Sattar and K. A. Khadir and Co." was dissolved on 10 June, 1938, and for accounts. The suit was settled by arbitration. The arbitrators, on 25 March, 1940, decided to sell the properties of the firm and the trade-marks separately in auction and also to sell the.amount of .decree dues and the arrears of shop rent in another lot. Pursuant to that resolution the assets of the business were sold and divided between the parties. The trade-marks Rising Sun, Tiger Scooting, and Asal Jadi were sold to one Zuleika Bi Bi. After the sale and the allotment, an award was passed confirming the various sales which was unanimously agreed to by all parties. On 20 April, 1940, a decree was passed, Ex. P-1, in terms of the aforesaid award. On 7 July, 1940, Zuleika Bi Bi sold the three trade-marks to her brother, Abdul Wahab Saheb. The plaintiff in O.S. No. 14 of 1944 purchased the three trade-marks from Abdul Waheb Sahib, under Ex. P-1 (b) dated 10 February, 1941. The effect of the arbitration, the sales and the decree passed in terms of the award was that the proceeds of the assets and the trade-marks of the firm were divided between erstwhile partners. The title in the goodwill, not haying been sold, must be deemed to have continued in all the partners. The plaintiff in O.S. No. 14 of 1944, having purchased the aforesaid three trade-marks, filed the suit for a declaration of his title and for an injunction restraining the defendants from interfering with his rights. " K. A. Khadir and Sons " by proprietor, K. A. Khadir Sahib, filed the other suit, O.S. No. 13 of.1944, regarding the original Lion 7 trade-mark. Plaintiffs 2 to 8 are the children of Khadir Sahib, and the 9 plaintiff, his widow. Plaintiffs 2 and 4 to 9 are defendants in O.S. No. 14 of 1944. The 1 defendant in O.S. No. 13 of 1944 is the company styled as " K.M. Opsman and Co."alias" K.M. Khadir & Brothers." The second defendant is K. M. Oosman Sahib who is the plaintiff in O.S. No. 14 of 1944. After the dissolution of the aforesaid partnership, the case of the plaintiffs is that they started another beedi business at Gudiyattam in the year 1938. For the purpose of that trade they have designed the trade-mark, the subject-matter of the suit, and the prominent feature of the same was number "7." They alleged that the defendants, who had no right to the said trade-mark, were using the said mark, and that, therefore, they were entitled to an injunction restraining them from doing so.

(2.) The learned District Judge held, in O.S. No. 14 of 1944, that the plaintiffs therein did not acquire any right to the three trade-marks as the sale in favour of Zuleika Bi Bi of the trade marks simpliciter was invalid in law. In the other suit, the learned District Judge held that the plaintiffs acquired a right to the trademark, and that, therefore, the defendants had no right to either use that trademark or any colourable imitation thereof. In the result, he dismissed O.S. No. 14 of 1944 and decreed O.S. No. 13 of 1944, except as regards the damages claimed and the accounting, since there was no proof of damages, and no question of accounting arose. The plaintiffs in O.S. No. 14 of 1944, and the defendants 1 and 2 in O.S. No. 13 of 1944, preferred the above two appeals.

(3.) At this stage we may notice the law on the subject. A trade-mark is a mode of warranting the origin of the goods to which it is attached, or their trade association, and it is of the essence of a trade-mark that its representation should be true." The British American Tobacco Co., Ltd. V/s. Mah Boob Buksh (1910) I.L.R. 38 Cal. 110.