Amitava Lala, J. - (1.) This appeal is arising out of the judgement and order dated 07th March, 2008 passed by the concerned Additional District Judge, Agra refusing to grant an interim order of injunction in an interlocutory application arising out of a suit, being Original Suit No. 13 of 2007 (Sri Kanhaiya Lal Bansal v. Sahitya Bhawan Publications and others). Dispute relates to infringement of trademark and logo purportedly of one publisher and/or book seller known as Sahitya Bhawan Publishers and Distributors Private Limited.
(2.) By consent of the parties the appeal is heard for final disposal on the informal papers.
(3.) According to the appellant-plaintiff, he is founder of the trade name 'Sahitya Bhawan' and maker of the logo, which has been introduced as such in the year 1960. The copyright of the nomenclature and logo had been preserved with the appellant-plaintiff. The publishers and book sellers are normally selling the text books of its publication to various colleges and universities of the country. The business of the appellant-plaintiff continued as proprietorship till 1967 when his elder brother Sri Ram Saran Bansal joined in the same business. In 1969 Sri Ram Saran Bansal and Smt. Chanda Devi, mother of the appellant/plaintiff, became partners of the appellant/plaintiff. A partnership deed was executed on 01st July, 1969. Such trademark and its logo became goodwill of the partnership firm. On 31st March, 1988 Smt. Chanda Devi retired from the partnership and on 14th March, 1989 a new partnership deed was executed between the appellant-plaintiff and said Sri Ram Saran Bansal with effect from 01st April, 1988. Again the new partnership firm took over the goodwill of erstwhile partnership firm. According to the appellant-plaintiff, several eminent writers associated with the firm and wrote various books because of their connection with it which ultimately made the partnership business very famous. However, it has been alleged by the appellant-plaintiff that the intention of said Sri Ram Saran Bansal was not good. Funds of the firm were misused, in which respondents-defendant nos. 2 to 4 were also involved. Ultimately, he served a registered notice upon Sri Ram Saran Bansal on 26th March, 1995 dissolving the firm. Distribution of assets was started amongst the parties by lottery. Initially the trade name and logo along with goodwill was allotted in favour of Sri Ram Saran Bansal on exchange of Rs. 10,00,000/- to be paid to the appellant-plaintiff but ultimately he decided to accept Rs. 10,00,000/- on exchange of allotment of the same in favour of the appellant-plaintiff, to which he agreed. Therefore, Sri Ram Saran Bansal and other family members in support of him are clearly prohibited from having such right to use. Immediately after dissolution of the firm, on 17th June, 1995 a cheque of Rs. 10,00,000/- was drawn on Allahabad Bank, Agra being Bankers Cheque No. 636379/56/255 and sent to Sri Ram Saran Bansal by registered post, which has allegedly been refused from receiving by him. It has been further stated by the appellant-plaintiff that he is prior and continuous user of the trademark and logo since 1960 irrespective of changed status of the organisation. However, the appellant-plaintiff had made an application for registration of the trademark under the Trade and Merchandise Marks Act, 1958 (hereinafter called as the 'Act, 1958') on 17th April, 1995. Such Act, 1958 has been repealed and replaced by the Trade Marks Act, 1999 (hereinafter called as the 'Trade Marks Act'). Since the registration has been effected from the date of application i.e. 17th April, 1995, it would be deemed to have been made under the new Act.;