B.K.NARAYANA, J. - (1.) HEARD Sri Neeraj Grover, learned counsel for the appellant and Sri S.P. Upadhyay, learned counsel for the respondents.
(2.) THIS appeal is directed against the order dated 31.5.08 passed by the District Judge, Lucknow dismissing an application under order 39 Rule 1 and 2 read with Section 151 CPC moved by the plaintiff/appellant in regular Suit No. 09 of 2008 filed by it in the Court of District Judge, Lucknow claiming that the respondents were guilty of publicising, continuing and offering their services of language training institute under the name "Anglo American Centre for Languages" and/or AACL which was strikingly identical and deceptively similar to the appellant's well known trademark "American Centre for Languages" and/or ACL amounting to passing off the respondents services and business as those of the appellant and in consequence praying for issuing of a decree for permanent injunction restraining the defendant/respondents from publicising, continuing and offering their services of language training institute under the impugned marks Anglo American Centre for Languages and/or AACL, from reproducing any of the artistic or literary features of the pamphlets, study material, brochures, course structure of the appellant and specifically from reproducing the artistic works under the trademarks ACL-American Centre for Languages and ACL amounting to infringement of appellant's Copyright subsisting therein and registered under No. A-80062/07 and for a decree of mandatory injunction directing the respondents to deliver up all the infringing and falsified pamphlets, banners, hoardings, study material, brochures and other publicity material etc. bearing the impugned marks Anglo American Centre for Languages and/or AACL for the purposes of destruction/erasure to the appellant pending disposal of the suit. The appellant prayed for grant of ad interim injunction restraining the respondents from publicising, continuing and offering their impugned services of language training institute under the impugned marks Anglo American Centre for Languages and AACL by the respondents. The appellant's case is that it is a private limited company engaged in the business of imparting English language training and is a leading entity in the said business having centres running successfully at Lucknow, New Delhi, Gurgaon, Kanpur and Chandigarh. The appellant's company is the proprietor of the well known trademark 'American Centre For Language" or ACL and the trademark has been used as essential part of its corporate. The appellant is imparting English language thereunder since the year 2003 and the trademark "American Centre for Languages" or ACL was assigned to the appellant by its predecessor in interest and title, Mr. Pravind Sharma in the year 1995-96. By virtue of long continuous and extensive use made in respect of the trademark, the appellant has earned a handsome reputation and goodwill in the market. The appellant is the proprietor of the trademark "American Centre for Languages or ACL under the common law and any unauthorised use of the said trademark or any other deceptively confusingly similar trademark on the part of any person in respect of the business of imparting of any kind of languages or other trade or any other cognate/allied services shall amount to passing of such business as those of the appellant and as such the respondents are liable to be restrained under the common law principle of passing off. The trademark ACL bearing an artistic law out letter and design which being an original artistic work is the proprietary of the appellant. The impugned trademarks were adopted by the respondents in the month of December, 2007. The attention of the appellant was drawn to the adoption and use of deceptively and confusingly similar mark or name Anglo American Centre For Languages and AACL by the respondents who were also imparting English Training in the same grade and immediately thereafter the appellant issued a cease and desist legal notice. The appellant was compelled to institute the suit giving rise to the present appeal before the Court of District Judge, Lucknow to seek appropriate legal remedies against the respondents when the cease and desist notice did not yield any response.
(3.) AGAINST the appellant's application C-5, respondents filed their objection C-20 alleging that the appellants had not come to the Court with clean hand and it suppressed material facts. The trade mark "American Centre for Languages" is not registered and the Registrar of the Trademark had asked them to disclaim the work "American" which they have not done. Hence their trademark has not been registered. The respondents have been running their centre in the name of "Anglo American Centre for language" for last 6 months and have been imparting training in Computer learning since now. The allegation of appellant that the respondents gave identical services and their trademark is identical to that of appellant is totally in correct. The services by the respondents and appellant are being rendered to educated customers and no one can be led away by the alleged trade mark of appellant and respondents. The Appellant cannot claim monopoly over the use of word 'American'. The method of teaching of defendants is totally distinctive in nature. Their work method is neither reproduction or adoption of the appellant's artistic work. The appellant do not have right to get production of alleged trade mark and they can not claim injunction in respect of its trade mark.;