HARISH MOTICHAND SARIYA Vs. AJANTA INDIA LIMITED

JUDGEMENT

(1.) THIS is a motion by the plaintiff for temporary injunction for restraining the defendants from using, in relation to non-medicated toilet preparations including tooth paste, soaps, shaving cream, shampoo, cosmetics and allied goods, the trade mark AJANTA or any other trade mark deceptively similar to the plaintiffs trade mark AJANTA and from using the word ajanta as part of their corporate name or trading style or in any other manner whatsoever in relation to their business of manufacturing or trading in said goods so as to pass off their goods as those of the plaintiffs goods. The plaintiffs have also prayed for injunction estrainining the defendants from infringing the plaintiffs mark AJANTA bearing registration No. 220724-B in class 03 by using in relation to non-medicated toilet preparations the trade mark AJANTA or any other trade mark deceptively similar to the plaintiffs registered trade mark.

(2.) THE controversy relates to the trade mark "ajanta" which, the plaintiff including his predecessor in interest, owns in respect of brushes including tooth brushes. The plaintiff claims to have subsequently started using the trade mark for manufacturing tooth paste. By the present suit they seek as injunction restraining the defendants from using the word mark "ajanta" in respect of tooth paste. Apart from the claim that they have a registered trade mark in the word "ajanta" they claim an injunction against the defendants for passing off their goods as those of the plaintiff. The notable feature of the plaintiffs case is that he claims an injunction against the defendants from using the trade mark "ajanta" not only on the basis that the plaintiff is manufacturing a tooth paste carrying the trade mark "ajanta" but that he has long standing proprietary rights in the word "ajanta" in relation to cognate goods such as tooth brushes which he has been manufacturing since 1950. He claims that irrespective of whether he has started manufacturing tooth paste or not, he is entitled to an injunction restraining the defendants from using the trade mark "ajanta" for his tooth paste since the plaintiff has been using that mark for about 50 years in respect of cognate goods.

(3.) WHILE the plaintiff has filed the suit on 14th February, 2003 the defendant has filed a prior suit in the Civil Court at Ahmedabad on 18th January, 2003. In the defendants suit registered as Regular Civil Suit No. 165 of 2003 in the City Civil Court at Ahmedabad they have made an identical prayer for a decree restraining the plaintiff herein from using in any manner in relation to their (plaintiff) tooth paste the trade mark "ajanta" so as to infringe their (defendants) registered trade mark bearing No. 535953 B. They have also claimed an injunction for restraining the plaintiff from passing off their goods as theirs (defendants ). The pending suit at Ahmedabad for injunction gives rise to the contention as to the legality of the exercise of jurisdiction of this court for granting temporary injunction. According to Mr. Sanghi, the learned counsel appearing on behalf of the defendants, this Court ought not to exercise its jurisdiction even for the purpose of considering the grant of temporary injunction in view of the principle underlying section 10 of the Code on Civil procedure which reads as follows :