- (1.) THE appellant claims to be the registered proprietor of the Trade Mark 'PRESTIGE' in respect of non-electrical cooking and kitchen utensils including pressure cookers. THE case of the appellant is that in the year 1986, it learnt about the sale of pressure cookers under the mark 'PRE/STAGE, A criminal complaint under Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 was filed before the Chief Metropolitan Magistrate, Delhi, Warrants were issued on several occasions against the respondents in the said criminal complaint and raids were conducted in which pressure cookers bearing the Trade Mark 'PRE/STAGE' were seized from the premises of the respondents. THE appellant submits that the respondents stopped manufacturing pressure cookers under the said name thereafter. However, 1 November, 1989, the appellant claims to have come across an advertisement of the respondents' application for registration of Trade Mark in the Trade Marks Journal No. 970 dt. 01.11.1989. THE appellant filed opposition objecting to the registration in favour of respondents of the Trade Mark 'PRE/STAGE'. In July, it is stated that the respondents had started re-selling the pressure cookers under the Trade Mark 'PRE/STAGE'. A suit was filed in January, 1991 by the appellant in the High Court of Delhi against the respondents seeking an injunction to restrain them from manufacturing and marketing pressure cookers under the Trade Mark 'PRE/STAGE'. An ex-parte interim injunction was granted in the said suit in favour of the appellant. THE suit was transferred to the District Court in view of the amendment regarding the jurisdictional value of the High Court of Delhi. On transfer, the suit was numbered as Suit No. 973/94. It was pending before an Additional District Judge, Delhi who vide his order date 5/12/1995 vacated the ex- parte interim injunction earlier granted in favour of the plaintiff (the appellant herein). An appeal was filed against the said judgment of the Additional District Judge in the High Court of Delhi which was registered as F.A.O. No. 26/96. THE said appeal was disposed of by the learned Single Judge by the impugned order dt. 13.10.1998.
(2.) AT this stage, it will be worthwhile to note about the fate of the proceedings regarding the respondents' application for registration of the Trade Mark 'PRE/STAGE' in their favour before the Registrar, Trade Marks. The appellant had filed objections in the Registry against the same. The Registrar rejected the objections of the appellant and granted registration in favour of the respondents. Against that order the appellant had filed an appeal in the Delhi High Court which was registered as C.M. (M) No. 125/95. This appeal was transferred to the Intellectual Property Appellate Board in view of the amendment in the statute. The learned Judge of the High Court while disposing F.A.O. No. 26/96 has observed in the concluding part of para 21 of the impugned judgment as under:- "(iv) In case of cancellation of registration of the Trade Mark PRESTIGE in favour of the respondent, the respondent shall stand restrained from manufacturing or marketing pressure cookers under the trade name PRESTIGE." This needs to be mentioned here that the word 'PRESTIGE' mentioned in the above-quoted para of the impugned judgment appears to be a mistake because the respondents had sought registration of Trade Mark 'PRE/STAGE' and not 'PRESTIGE'. 'PRESTIGE' is the registered Trade Mark of the appellant. In the earlier part of the judgment, the learned Judge of the High Court has correctly mentioned the word 'PRE/STAGE' so far as it is claimed by the respondents. The learned Counsel for the appellant informs that the Intellectual Property Appellate Board has in the meanwhile decided the appeal in his favour and the registration granted in favour of the respondents regarding Trade Mark 'PRE/STAGE' by the Registrar, Trade Marks has been cancelled. Therefore, in terms of the operative part of the impugned judgment quoted above, the appellant is entitled to the injunction he had prayed for in the suit and the respondents are liable to be restrained from manufacturing or marketing pressure cookers under the Trade Mark 'PRE/STAGE'. At this stage, we may further note that while entertaining this appeal this Court had passed an interim Order on 12/1/1999 as under:- "In the meantime, the respondents are restrained either by themselves or through their agents, servants or otherwise, from selling or offering for sale pressure cookers under the trade mark of "PRE/STAGE" or any other trade mark or mark deceptively similar to the trade mark "PRESTIGE" of the petitioners." This order continues to be in force.
(3.) WE are further informed that the main suit is still pending in the District Court and is now fixed for evidence of the parties. Keeping these aspects in view, we direct that during the pendency of the suit, the interim injunction granted by this Court in favour of the appellant on 12/1/1999 will continue in force. The same will however abide the final decision of the suit. Learned Counsel for the appellant has drawn our attention to certain observations made in para 19 of the impugned judgment which according to him are not correct. The Counsel for the respondents disputes this. Without entering into this controversy, we make it clear that the observations will not come in the way of the trial Court in deciding the case on merits. This appeal is disposed of accordingly. No order as to costs.;