R.R.Mitra - (1.) AGGRIEVED against an order rejecting the injunction application filed by the plaintiffs- appellants, the plaintiff have filed the present first appeal from order, which has been admitted on 10.8.1990. On the interim matter counter-affidavit and rejoinder-affidavit have been exchanged between the parties and the learned counsel for the parties have been heard in detail.
(2.) ADMITTEDLY, the plaintiffs- appellants are the exclusive proprietors of the registered trade mark "Kwality" under which brand name they manufacture Ice-Cream. The appellants are also registered proprietors of the said trade mark, as per the Indian Trade and Merchandise Marks Act, 1958 in respect of manufacture of Ice-Cream on sticks and Ice-Cream powder for sale in various States of India as well as in the territories of Jammu and Kashmir. They have filed copies of registration certificate also accordingly. That the Ice-Cream products of the appellants relate to the Ice- Cream sold by the appellants in a very extensive market and it is claimed that by virtue of its high standard and quality they have earned "Good-Will" of the public at large and the annual sale of Ice-Cream under the said trade mark "Kwality" is to the tune of Thirty crores. In the year 1987 the defendants-respondents, who belong to Agra and also sell well "Kwality" Ice Cream, filed an original Suit No. 19 of 1987 against the plaintiffs- appellants under Section 27 of the Indian Trade and Merchandise Marks Act, 1958. They also sought for issue of an injunction restraining the plaintiff-appellants, who were defendants in that suit, from marketing their products under the name and style of "Kwality" in the city of Agra. The allegation in that suit of the defendants- respondents was that the present appellants, who were defendants in that suit, were 'passing off' their goods as those of the plaintiffs i.e. the present defendants. After contest ultimately the trial Court passed an order dated 9.10.1987 under which the stay application of the plaintiffs is that suit i.e. the present defendants-appellants, was rejected. Admittedly, no appeal/revision or writ petition against the same was filed by the defendants-respondents. A copy of the said order dated 9.10.1987 has also been filed by the plaintiffs-appellants in the present case as Annexure '11' to the affidavit filed in support on the stay application in this Court. From a perusal of the said order, it is apparent that in the order dated 9.10.87 the learned special Judge, Agra has recorded specific findings that (1) The plaintiffs-appellants in this court were the registered proprietors of the Trade-Mark "Kwality", (2) They were using the said Trade Mark much prior to the defendants-respondents (in the present appeal) and (3) In fact, the defendants-respondents in the present appeal were passing off the goods in the name of the plaintiffs-appellants without any authority. Since the defendants-respondents continued in infringing the Trade Mark, the plaintiffs-appellants were compelled to file the present Suit No. 1 of 1988, which gave rise to the present appeal. It was admitted by the defendants-respondents that they were selling their Ice-Cream as "Kwality" Ice-Cream and that the dispute between the parties was the same as in earlier Original Suit No. 19 of 1987. It is also admitted to the parties that the defendants-respondents are not registered with the Trade Mark "Kwality" Ice-Cream and yet they are selling the same and have raised their claim under Section 27 of the Indian Trade and Merchandise Marks Act, 1958 and sought relief under section 106 of the said Act.
(3.) I have carefully gone through the earlier order dated 9/10/1987 as well as the impugned order dated 27/2/1990. It is surprising that when the dispute between the parties relates to the same subject-matter, when the defendants-respondents filed Suit No. 19 of 1987 and when on an injunction application made by the defendants- respondents, who were plaintiffs in that case, the Court refused to grant injunction and subsequently when the present plaintiffs-appellants came to file Suit no. 1 of 1988, they moved an injunction application again against the defendants about the same subject-matter, which too has been rejected by the trial Court by the impugned order. That apart, I have gone through the reasoning given by the trial Court in its order dated 27/2/1990 and have carefully considered the submissions made by the learned counsel for the parties as well as have weighed the equitie of the case. Besides this, the plaintiff's are admittedly using the Trade Mark which is registered since 1957, whereas the defendants-respondents are using the same since 1977. On a consideration of the entire facts and the circumstances of the case I consider it expedient and accordingly in the interest of justice issue and interim injunction against the defendants-respondents, restraining them, their servants, agents, stockists, dealers and all other persons acting on their behalf from using the Trade "Kwality" in relation to the manufacture or sale of Ice-Cream or from marketing the same deceptively similar to the plaintiffs registered Trade Mark "Kwality" and further restraining them, their servants, agents, stockists, dealers and all other persons acting on their behalf from passing off their goods in the trading style of plaintiff- appellants.;