MD.ABDUL AZIZ, J. -
(1.) This petition for leave to appeal is directed against the judgment and order dated 24.07.2008 passed by a Single Bench of the High Court Division in Civil Revision No.2212 of 2008 discharging the Rule arising out of judgment and order dated 09.06.2008 passed in Title Suit No.2384 of 2008 by the learned District Judge, Dhaka staying operation of ex parte decree of Title Suit No. 10 of 2006 by the learned Additional District Judge, Dhaka.
(2.) The short case of the plaintiff is that the plaintiff is a research based manufacturer from China since long time of the Playing Cards and have been marketing the same throughout the world including Bangladesh. One of the popular trade marks of the plaintiff used in Playing Cards failing under class-16 consisting of the word "AMERICA, "USA", "DON" and "VISA" in artistic style along with distinctive colour, scheme design and getup and the said trademark has already acquired popularity and distinctiveness by extensive use and sale since a long time. The plaintiffs Trade Mark with distinctive colour scheme, design, device and getup has been shown in schedule 'A' to the plaint. To protect and safeguard the plaintiffs right, interests and title in Playing Cards which are extensively used by the plaintiff, the plaintiff have applied for registration of the Trade Marks ''AMERICA", "USA", "DON" and "VISA" in artistic style along with distinctive colour scheme, design, device and getup under the statutory provision of Trade Marks Act, 1940 in the office of the Directorate of Patents, Designs and Trade Marks, Dhaka being Trade Mark No. 99825, 99826, 99827 and 99828 in class 16 all dated 13.6.2006. The plaintiff has given wide publicity of their above trade marks at huge costs through various media of publicity with the result that the said trade mark has become closely associated in the minds of the public with the products and services of this plaintiff. By virtue of long and extensive use and for registration of the Trade Mark "AMERICA", "USA", "DON" and "VISA" in respect of Playing Cards before the Directorate of Patents, Designs and Trade Mark, Dhaka, the plaintiff has acquired exclusive and monopolistic right over the Trade Mark "AMERICA", "USA", "DON" and "VISA" in respect of Playing Cards with the result that nobody else can adopt the Trade Mark "AMERICA", "USA", "DON" and "VISA" in respect of Playing Cards with its artistic style, distinctive colour scheme and getup or any other Trade Marks or word marks or letter marks which may conflict with the plaintiffs trade mark visually or phonetically or which may bear close and deceptive resemblance to such trade mark. The plaintiff has recently come to know that the defendant No.1 by virtue of being the agent of the plaintiff, applied to various authorities in Bangladesh claiming himself to have the right, title and interest for the Trade Marks Trade Mark "AMERICA", "USA", "DON" and "VISA" and made false statement as manufacturer and merchant of the goods or Playing Cards for the Trade Marks Trade Mark "AMERICA", "USA", "DON" and "VISA" which is illegal, unjust and without any lawful authority and not permissible under the Trade Marks Act, 1940. The plaintiff has obtained information that by virtue of some documents issued by the various authorities the defendant No. 1 claiming himself as the owner of the Trade Marks "AMERICA", "USA", "DON" and "VISA" filed a Title Suit No. 10 of 2006 before the Court of 2nd Additional District Judge, Dhaka and obtained an ex-parte decree on 04.02.2007, Title Suit No.27 of 2006 before the 6th Additional District Judge, Dhaka and obtained ex parte decree on 24.06.2007 and Title Suit No.44 of 2005 before the Court of 5th Additional District Judge, Dhaka and obtained ex-parte decree on 30.05.2006. The plaintiff also submitted the separate application for staying operation of the aforesaid ex-parte judgment and decrees.
(3.) Petitioner-defendant No.1 filed a written objection against the application for stay. His claim is that he is the prior user of the trade mark 'America', 'Don' and 'Visa along with its design, color and get up of the playing cards for which the plaintiff is not entitled to any order of stay. He further claims that he has been using the trade marks in this Country since 2003 and to protect his right, title and interest in the trade marks, he filed three applications before the Registrar, Department of Patents, Design and Trade Marks for registration of the trade marks and the said applications are awaiting registration. He further stated that the plaintiff is merely a supplier to defendant No.1 and has been supplying the playing cards to the defendant No.1 for the last about six months and that he has been importing three categories les of playing cards from other suppliers from China. The application is therefore, liable to be rejected.;