Decided on August 24,1993



N.C. Gupta, Member - (1.) THIS order will dispose of the application under Section 12A of the Monopolies and Restrictive Trade Practices Act, 1969, filed by the complainant against the respondents. The complainant is an established public limited company which is engaged in the manufacture and sale of many items including Panjon tablets, Swad Digestive Drops, Percy Candy and soft drink liquid concentrate. It claims to have purchased the trade mark "Panjon", "Swad" and "Percy" from Panama Chemical Works, Indore, by an agreement of deed of assignment dated May 26, 1990. Indisputably, the complainant has spent lot of money in advertising for the publicity of the product "Swad" which is by now an established brand. The respondent above-named has been recently incorporated in May, 1992, and is marketing its products particularly packaged tea by name "Swad" associated with it. The label "Swad" of the complainant has been registered under the Copyright Act. Respondent No. 1 started inviting private placement from investors in respect of a public issue to be floated by it.
(2.) It is alleged that respondent No. 1 intentionally, mischievously and deceptively adopted the name "Swad" in its corporate name and in the name of its products without any authority and in violation of the Copyright Act of "Swad" in favour of the complainant. It is further alleged that respondent No. 2 as the managing director of respondent No. 1, to hoodwink the investing public, highlighted the name "Swad" in its corporate name and attached this prefix to its products. Respondent No. 1 in the meantime floated a public issue and the present complaint has been filed praying for an enquiry against the respondent for adopting unfair trade practice-in terms of Section 36A(1)(i) read with Sub-sections (iv) and (v) of the Act. Along with the complaint, an application for temporary injunction has also been filed wherein it is, inter alia, prayed that the respondents may be restrained from adopting the unfair trade practice by resorting to advertisements connected with the public issue, from collection of subscription and also in any way using the word "Swad" in its corporate name and in its products thereby adversely and irrevocably affecting and harming the interest of the complainant and the consumers in general.
(3.) NOTICE of the injunction application was issued to the respondents, vide order dated March 4, 1993. Learned counsel for the respondents appeared on March 23, 1993, and wanted two weeks' time to file a written reply both to the main complaint and the injunction application. The time was granted and the case was listed on April 6, 1993. On the said date, counsel appearing for the respondent wanted further time to file a reply stating that the draft is ready but awaiting signature of the respondent. The time was allowed and the case was fixed for consideration on April 13, 1993. The respondent was asked to bring accounts of subscriptions made by the public in respect of the public issue of equity on the next date and the respondent counsel agreed to supply the same. The respondent, however, failed to comply with the directions. He was granted one more week's time to file the said statement. However, in view of the respondent's recalcitrant attitude, on April 13, 1993, an interim order was passed directing the respondent "not to utilise the funds received in response to the public issue already floated till further orders". On the next date, i.e., April 27, 1993, learned counsel for the respondent stated that the public issue has not been fully subscribed and that the respondent has written to the underwriters for devolvement. He also gave an undertaking that the company would not utilise the funds received by way of subscription money from the public till the matter is finally decided and devolvement proceedings come to a close. However, the parties were directed not to issue any public notice or other advertisement in the newspapers pertaining to this limited restraint order. It was done on the request made on behalf of the respondent to avoid any possible unintended harm done regarding devolvement proceedings or to jeopardise the proceedings connected with the public issue. By common consent, the matter was fixed for final hearing on the application on July 29, 1993. On the said date, it was brought to the notice of the Commission that the respondent had filed an application under Article 227 of the Constitution in the High Court of Gujarat at Ahmedabad to complain against the order passed by the Commission. This fact of filing a writ petition was not earlier disclosed on behalf of the respondent. In view of the pending proceedings before the High Court, the Commission did not consider it desirable to proceed with the matter. However, learned counsel for the respondent pleaded that the matter may be heard by the Commission because the respondent does not want to pursue the matter before the High Court. The respondent thereafter filed an application before the Commission stating that the petition had been withdrawn and the Commission may hear arguments in the pending application under Section 12A. The arguments were heard quite at length and the arguments concluded on August 19, 1993.;

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