J.D.Jain - (1.) This is an application under Order 6 Rule 17 read with Section 151 Civil Procedure Code. for amendment of plaint.
(2.) The facts germane to the disposal of this application succinctly are that as far back as January 1976, the plaintiff-applicant instituted a suit for permanent injunction restraining the defendants from infringing of his copy right and passing his goods viz. white zinc paint as goods of the plaintiff by colour-able imitation of the design on the container in which the white zinc paint of the plaintiff was sold under the trade mark 1001. It was alleged that salient features of the plaintiff's trade mark were the numeral 1001 appearing in bold type in great lettering on a white circle alongwith the expression "superior white" on top and bottom of the circle. Further the plaintiff's artistic design on the container was registered under No. A.13952/75 under the Copy Right Act 1957 and had been used for about a year prior to the institution of the suit. However, the defendant adopted an identical containers in respect of its white paint which depicted numeral 9001 appearing in bold type in grade lettering on a white circle superior white on top and zinc paint on the bottom in the circle. It was further alleged that the get-up lay-out, arrangement and violet grey and white colour combination adopted by the defendant were in order to cause confusion and deception in the minds of the trade and the public and in order to pass off white zinc point as the genuinel product of the plaintiff.
(3.) The plaintiff now seeks to amend his plaint by raising an additional ground of infringement of his trade mark 1001 and the container design which was registered during the pendency of the suit being No 307527 dated 8.8.75. He has also pointed out that he had registered trade mark No. 124357 for the numeral 1001 per se dated 19.8.46 Thus according to him, both the registered trade mark Nos. 307527 and the registered Copy Right No. 13952/75 relate to one of the same artistic representation of his containers and the trade mark registration of the container confers additional proprietory right on him as against the defendants and other persons who had invaded his right. He has also . pointed out that a certified copy of his registered Trade Mark No. 307527 has already been tendered in evidence during the course of trial under Section 115 of the Trade and Merchandise Marks Act vide order dated 29.8.79. So be seeks amendment by addition of a new plea in order to avoid multiplicity of suits and in the interest of justice, equity and good conscience.;