Decided on May 03,2007



J.M. Malik, J. - (1.) This is a peculiar case where both the real brothers and their sister namely Mr. Harsh Vardhan Rastogi, appellant, Mr.Rajeev Rattan Rastogi and Smt.Ram Kali, respondents, are up in arms. The trial court vide order dated 6th April, 2005, declined the application moved by the plaintiff, appellant herein, under Order 39 Rules 1 and 2 read with Section 151 CPC with the prayer that the defendant, respondent herein, be restrained from using the trade mark "Champion" in respect of the printed publication, i.e. guides, books, etc. with or without any prefix or suffix. Adumbrated in brief, the facts of this case are these. The appellant is transacting the business of publication and marketing the books under the name and style of "M/s Forward Book Depot" since 1942. In the year 1969, the appellant adopted the trademark "Champion" in respect of books. Thereafter, in the year 1985, the appellant filed an application for registration of the trademark "Champion" before the Registrar and in this regard a certificate was issued in favour of the appellant.
(2.) The defendant/respondent was one of the partners of the abovesaid firm. The said firm stood dissolved vide dissolution deed dated 31st April, 1994. As per the dissolution deed, the respondent has no right to use the word "Champion" in respect of books because the appellant became lawful and exclusive proprietor of the trademark "Champion". In the year 1997, the defendant/respondent started using the trade mark "Champion". The appellant tried to reason with the respondent by requesting him not to use the word "Champion" but it did not ring the bell. Consequently, the suit for injunction was filed against the respondent.
(3.) The respondent has defended the instant case on the following grounds. The above-said dissolution deed was never acted upon in its totality. The appellant, who is the elder brother of the respondent, has misused his position by excluding the respondent from yielding the fruits of trademark "Champion". Their father came from Uttar Pradesh before the independence of the country and established the name of "Champion" in the publishing sector. Consequently, both the appellant and the respondent have equal right to use the same and since the appellant did not settle the accounts and failed to act upon the dissolution deed, the respondent, too, have a right to use the trade mark "Champion" albeit he is not using the said name.;

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