V.P. Goel, J. - (1.) THIS F.A.F.P. under Order 43, Rule 1(r) of the Code of Civil Procedure has been filed by defendants against the order dated 15.5.1993, passed by the learned IVth Additional District Judge, Varanasi by which learned Judge has allowed the application 6-Ga and granted ad-interim injunction restraining the defendants from manufacturing and selling in any manner whatsoever their traditional product of "Rubber Hawai Chappals" Sleepers and straps of Chappals being manufactured and sold under the trade name "RUAPNI."
(2.) M/s. Bajrangbali Industries, Kanpur through Bajrang Company and two others as plaintiffs-respondents (hereinafter referred to as the plaintiff) instituted a Civil Suit No. 50 of 1991 in Court of Vth Additional District Judge, Varanasi against M/s. Maulana Boot House and six others included as defendants-respondents (hereinafter referred to as defendants) seeking relied inter alia for a perpetual injunction restraining the defendants from manufacturing and using the trade mark "RUPANI" for action for passing off, infringement of copy right and rendition of account etc. Simultaneously, plaintiff filed an application for temporary injunction during the pendency of suit. Vth Additional District Judge, Varanasi granted temporary injunction in terms prayed for by the plaintiff. Both the plaintiff and defendants are engaged in the business of manufacturing of "Rubber Hawai Chappals Sleepers". Both of them are dealing in the same or similar kinds of goods and are marketing their products in the name "RUPANI". The plaintiff has its office at Varanasi. The plaint allegations are that plaintiff No. 1 was a partnership concern and plaintiff No. 2 was one of its partner. The plaintiff firm in the year 1987 established a Small Scale Industries for manufacturing Rubber Hawai Chappals, Sleepers and Straps for Chappals at Kanpur, that the plaintiff designed trade mark "RUPANI" for its special and particular appearance and the said trade mark was coined and adopted very carefully honestly in respect of the products manufactured by it; that the plaintiff No. 1 granted licence to plaintiff No. 3 permitting him to use the aforementioned trade mark in respect of 'RUPANI' Hawai Chappals; that the plaintiff also applied for registration of the trade mark under the provisions of Trade and Merchandise Marks Act, 1958, that the Trade Mark 'RUPANI' under application No. 469844 has been advertised in the Trade Mark Journal No. 984 dated 1.6.1990 that the plaintiffs started using the said Trade Mark 'RUPANI' in respect of its manufactured goods of Rubber Hawai Chappals, Sleepers and Straps on or about 17.3.1988 and since then has been carrying on the business of manufacturing and selling of their products under the Trade Mark 'RUPANI' continuously and without any interruption; that on introduction of plaintiff's product under the Trade Mark 'RUPANI' used by the plaintiffs in respect of the Rubber Hawai Chappals, Sleepers and Straps; the plaintiffs spent huge amount of money since March 1988 in order to give publicity to their products and have acquired immense goodwill and reputation and the use of any other trader manufacturing same goods was bound to cause confusion and deception amounting to passing off; that the said Trade Mark 'RUPANI' denoted exclusively the products of plaintiffs and none else. It was further alleged in the plaint that in the month of October, 1991 it came to the knowledge of the plaintiffs that defendant No. 3 had filed an objection to the registration of the plaintiffs' trade mark and it also came to the knowledge of the plaintiffs that the Rubber Hawai Chappals bearing trade mark identical to that of the plaintiffs' 'RUPANI' are being marketed openly and freely in the market of Varanasi and on inquiry it was discovered that the defendant Nos. 1 and 2 were selling Rubber Hawai Chappals bearing identical trade mark to that of the plaintiff at commercial level in Varanasi that the defendant No. 3 i.e. M/s Priya Rubber and Plastic Industries of which the defendant Nos. 4, 5 and 6 are partners were supplying spurious products in bulk quantities bearing the trade mark identical to that of the plaintiffs to defendant Nos. 1 and 2 i.e M/s Maulana Boot House for commercial purpose; that after making a test purchase of one dozen Hawai Chappals for which defendant Nos. 1 and 2 refused to issue cash memo or receipt, the plaintiffs came to know that the defendants had adopted identical letters and had also copied the very style of the letters of the plaintiff's trade mark and were with fraudulent intentions passing off their bad quality the cheap goods as the goods of the plaintiff; that the use of impugned trade mark on the part of defendants in relation to Rubber Hawai Chappals was bound to create confusion and deception among the purchaser public who would be induced to believe that the goods of defendants were associated with or approved by plaintiffs or had some nexus with the plaintiffs which amounted to 'passing off' the goods of defendants as those of the plaintiffs; that the said conduct of defendants was dishonest, malafide and motivated to encash upon the goodwill and reputation attached to plaintiffs' Trade Mark 'Rupani' and earned easy and illegal profits by passing off their goods and/or business as those of plaintiffs, that illegal and nefarious trade activities of the defendants was causing irreparable loss, damage and injury to the goodwill and reputation of plaintiffs and their products.
(3.) ALONGWITH the aforesaid Suit, the plaintiff-respondents moved an application for temporary injunction for restraining the defendants from manufacturing, selling and offering for sale, advertising, directly or indirectly dealing in Hawai Chappals, Sleepers and Straps of Chappals under the offending Trade Mark "RUPANI" or any other trade mark as may be identical to, and/or deceptively similar to trade mark 'RUPANI' of the plaintiffs or from doing any other trade as may lead to confusion or deception amounting to "passing off" the goods and/or business of defendants for those of the plaintiffs. The aforesaid application was supported by an affidavit wherein the plaint allegations were repeated. The defendants-appellant filed a detail counter affidavit denying the allegations made in affidavit filed alongwith injunction application inter alia alleging that the word 'RUPANI' for trade mark was not coined honestly and bonafidely by the plaintiffs but the said trade mark 'RUPANI' had been adopted by defendant Nos. 3 to 6 for their business, Priya Rubber and Plastic Industries since long from the year 1981 and said mark inherently and distinctively denotes the goods of defendants' firm exclusively and none else and the said trade mark of defendants had been in long, prior, honest, continuous, extensive and voluminous use by defendants since 1981 and consequently it had acquired an unique and enviable goodwill and reputation amongst the purchasing public at large and the plaintiffs, subsequently, after a long interval when found that the business of defendants had captured a wide mark adopted and started since 1988 to use the said trade mark trade name RUPANI in relation to their business of same kind which was being done by the defendants No. 3 to 6 and the same was done with a mala fide motive and illegal design to dislodge the defendants from their flourishing trade, that plaintiffs maliciously and wrongly applied for registration of the trade mark in respect of Rubber Hawai Chappals, Sleepers, Straps for Chappals which was advertised in Trade Mark Journal No. 984, dated 1.6.1990 and against the aforesaid advertisement an objection has been filed by defendants on 16.6.1990 and aforesaid matter of registration of the trade mark is still pending before the Registrar, Trade Mark, New Delhi, and as such, it is not open for the plaintiffs to claim any ownership over the aforesaid Trade Mark "RUPANI" and advertisement in Trade Mark Journal of the application of plaintiffs clearly showed on 26.3.1987 that the said trade mark was simply proposed to be used; that the plaintiffs had wrongly started to use 'RUPANI' Trade Mark after a long interval of time when the Trade Mark 'RUPANI' was used by the defendants since 1981 and had become much popular and reputed among the dealers, agents, stockists and consumers due to quality of their products and due to wide extensive advertisement with respect thereto; that said Trade Mark 'RUPANI' being used by the defendant since the year 1981 had become a household expression in respect of the goods manufactured by the defendants and the present suit had been filed with a nefarious design to destroy the established business of the defendants; that the defendants were the exclusive inventors, and the absolute and true owners, and lawful proprietors of the said Trade Mark 'RUPANI' which was a prior and long used trade mark of the defendants and was fully associated in the mind of the trading and consuming public at large since 1981 and the Rubber Chappals bearing the trade name 'RUPANI' were always deemed to have been manufactured and supplied by the defendants and nobody else; that the Trade Name 'RUAPNI' has been illegally used by the plaintiffs simply to deceive traders and consumers in order to reduce the consumption of the products of the defendants, and as such, the plaintiffs were not entitled to take benefits of their deceptive acts, the said suit and relief for injunction was not maintainable on the above grounds.;