R.S.Tripathi, J. - (1.) This appeal has been filed against an order dated 17.10.2003, passed by District Judge, Kanpur Nagar in Original Suit No. 11 of 2003. Kothari Products v. R.K. Products, allowing application No. 5 (c) granting temporary injunction in favour of respondent restraining the appellant, its Proprietor/partners, officers, servants, dealers, stockist, heirs, representatives and all other person/persons on his behalf from using Trade Mark 'Kothari' and/or infringing the plaintiffs Trade Mark or passing off their goods of pan masala and any other goods of similar description as those of the respondent by manufacturing/selling/offering for sale, advertisement, directly or indirectly dealing with the said goods under the impugned Trade Mark Kothari and artistic monogram/logo entitled thereto as shown in Annexures-A and B forming part of the affidavit filed in support of application No. 5 (c) till disposal of the suit.
(2.) The briefly stated facts giving rise to the present appeal are that M/s. Kothari Products Limited-respondent filed a suit under the provisions of Sections 105 and 106 read with Section 27 of the Trade and Merchandise Marks Act, 1958 praying for permanent injunction restraining the defendant from using the trade mark 'Kothari' and monogram entitled thereto. An application No. 5 (c) was moved under Order XXXIX, Rules 1 and 2, C.P.C. read with Section 151, C.P.C. for the grant of temporary injunction against the appellant. It was supported with an affidavit. In the plaint, the respondent plaintiff pleaded that it was a Limited Liability Company incorporated under the Companies Act with authority to the Company Secretary to sign and verify the plaint on behalf of the respondent-plaintiff. It was contended in the plaint that the plaintiff company was manufacturer of pan masala, gutka in India and carrying on this business of sale of its product pan masala under the said trade mark pan parag and pan gutkha with specific description of Kothari Products in relation to pan masala as well as with artistic monograms/logo thereto having a special style and characteristics. The plaintiff asserted that in the year 1973. the plaintiff adopted the said trade mark with special mention of the word 'Kothari' which was registered under the Trade and Merchandise Marks Act on 12.5.1986 in the name and style of pan parag gutka having its registration No. 453959 renewed lastly on 12.5.2000 and also got its trade mark registered in respect of pan masala and zarda on 2.5.1975 under the registration No. 305123 and copy righted its trade mark 'parag gutka' zarda mixed is also registered under the trade mark on 10.2.1984 under Registration No. 417443 under Clause 34 and in respect of sada pan ka masala its application is also pending registration vide Application No. 49434 under Clause 31 both duly renewed on 10.2.1998 for next seven years. The case of the plaintiff-respondent was that the right to use the above trade mark is its exclusive right and has been in its use from time to time and therefore, no other person has any right to use its above trade mark/Monogram/Logo. The plaintiff claimed to have incurred expenses to popularize its goods on the basis of the above trade mark which had earned goodwill but the appellant-defendant has started manufacturing pan parag at Kanpur using a similar and deceptive trade mark identical to that of the respondent writing the word 'Kothari' on similar size of wrappers colour scheme and logo with a view to cause infringement to its above trade mark, thereby, passing off its goods as goods of the respondent resulting in loss to its business. Therefore, the respondent had no option but to file the above suit as the appellant has no right to use the aforesaid trade mark for passing off its goods as the goods of the respondent.
(3.) Before the lower court, the appellant defendant filed its objection challenging the rights of the respondent plaintiff to claim the right of using the trade mark in question Le., 'Kothari'. It was pleaded by the defendant that the the word 'Kothari' is the surname of an indian community consisting of several lacs of persons spread not only in India but all over the world. Appellant defendant has denied to have caused any infringement in the trade mark of the plaintiff respondent. Further, contention from the side of the appellant defendant was that the consumers of their manufactured articles are mostly illiterate persons and they never go by the trade mark or brand name. The appellant defendant tried to explain the requirement of business in accordance with the provisions of the said Act. They pleaded that the firm of plaintiff respondent has wrongly sought to be registered as 'Kothari' as trade mark and has practiced fraud, deception, and misrepresentation by concealing correct facts in getting its registration. They challenged the maintainability of the suit and pleaded that there was no question of passing off the goods on their part. They denied to have caused any loss to the business of the plaintiff respondent. According to the appellant, their products had earned reputation in the market by earning name and goodwill, therefore, it was wrong to say that the appellant had any mala fide intention to use the trade mark of the plaintiff-respondent. In its turn the appellant defendant also prayed for an interim injunction by filing counter-claim to restrain the plaintiff respondent from using the trade mark 'Kothari' in respect of its product.;