R. K. Gulati, J.- - (1.) M/s. Anand Biscuit Company, Kanpur, the plaintiff- appellant (hereinafter referred to as "the plaintiff") instituted a civil suit No. 21 of 1985 in the Court of District Judge, Kanpur against M/s. Anand Food Products, the defendant-respondent (hereinafter referred to as "the defendant") seeking the relief, inter-alia, for a perpetual injunction restraining the defendant from interfering and using the trade mark 'Anand', for actions for passing off, infringement of copyrights and rendition of account etc. Simultaneously with the institution of the suit, the plaintiff also filed an application for temporary injunction during the pendency of the suit. The IX Additional District Judge, Kanpur by his order dated 18-11-1988 while substituting his earlier ex- parte interim order refused to grant a temporary injunction in terms prayed for by plaintiff. The injunction granted by order dt. 18 11-1988 reads as under :- Vadi ka asthai nishedagya ka prarthana patra 16 Ga is shart ke sath swikar kiya jata hai ki prativadi ko vyapar chinha 'Anand' evam copy right ka prayog karke apne utpadan biscut evam anya mi the samano ko banakar U. P., Punjab, Haryana evam Rajasthan evam kendra shashit pradesh Delhi me vikraya karne ke bad ke antim nirnay tak nidhisht kiya jata hai. Ek pakshiya antrim adesh dinank 8-1-86 tadanusar sanshodhit kiya jata hai. Prativadi ko apne vikraya ka purna lekha bana kar prastut karne ka nirdesh diya jata hai. Sd. V. K. Khare Navam Apar Zila Nyayadhish Kanpur Nagar The above order was passed after the defendant had filed its written statement and its reply to the application for interim relief and on consideration of respective pleadings of the parties, as well as the evidence which had till then been brought on record. Being dissatisfied with the terms of the interim injunction the plaintiff has come up in this appeal.
(2.) IT is appropriate to note few facts at this stage, which are relevant and have bearing on the decision of this appeal. Both the plaintiff and the defendant are engaged in the business of manufacturing biscuits and confectionary. Both of them are dealing in the same or similar kinds of goods and are marketing their products in the name 'Anand'. The plaintiff has its head office at Kanpur whereas the head office of the defendant is located at Hyderabad, in the State of Andhra Pradesh. The plaint allegations are that the plaintiff is the registered proprietor of the trade mark 'Anand' registered in Part-B in accordance with the provisions of the Trade and Merchandise Marks Act, 1958 (for short "the Act") under registration No. 293034 dated 12-11-1973. The said registration is confined for the State of U. P., Punjab, Haryana, Rajasthan and the Union Territory of Delhi alone The plaintiff is also the registered owner of the design of 'Anand Biscuit' under the Design Act, 1911, under registration No. 141889 dated 21-5-1974. The plaintiff is one of the biggest manufacturer of biscuit and confectionary of fine quality and is marketing its products since the year 1956 under the trade mark 'Anand' and its products are sold in wrappers/ packings of distinctive colour schemes and desings and such wrappers are registered under the provisions of the Copy Right Act 1957, particulars whereof are 'Anand Biscuits, Anand Bunbury and Anand Glucose'. The products bearing registered trade mark 'Anand' are advertised on large and extensive scale by the plaintiff through various advertising media including the newspaper having circulation throughout the country, and the trade mark 'Anand' and the copy right labels/wrappers have become associated exclusively with the product of the plaintiff and the turnover of sales has increased, year after year, by leaps and bounds, (the details of yearwise sales for certain years have been placed on the records of this appeal). In June 1981, for the first time the plaintiff learnt that the defendant had introduced in the market similar products i. e. biscuit and confectionary under the name 'Anand' in similar and somewhat identical wrappers as that of the plaintiff and the defendant was infringing the registered copy rights of the plaintiff and passing off its goods as the goods of the plaintiff. A notice was given to the defendant on 16-6-1981 who resorted to the proceedings for rectification under the Act, which terminated by an order dated 8-2-1985 passed by the Registrar, Trade Mark New Delhi, in favour of the plaintiff. The civil suit aforesaid was thereafter, instituted claiming the relief as set out earlier.
(3.) IN the written statement the defendant denied the allegations of infringement and passing off. The suit is resisted on the defence amongst other that the registration of the disputed trade mark was limited with regard to its user in the State for which it carried its registration. There is no commercial sale of the plaintiff's products in the trade mark in question in any other State or Union Territories of INdia. The defendant has been extensively manufacturing and selling its products under the mark 'Anand' in its own several distinctive registered labels/wrappers continuously openly and uninterruptedly since the year 1979 throughout INdia except the States and territory in which plaintiff holds its trade mark registration. The defendant is also exporting its products under the mark in question to the gulf countries and Africa. It holds independent registration certificate under the Copyright Act for its several distinctive wrappers, unique monogram and trading style. It is wrong to claim that the distinctive wrappers/labels of the defendant or its mark caused confusion or misleading to the purchasers, as a perusal of the wrappers etc. would disclose that they are entirely different. The order of the Registrar rejecting the rectification proceedings does not confer any additional legal rights to the plaintiff with regard to the impugned trade mark and in any case, the plaintiff has admitted to have knowledge of the defendant's mark since the year 1981 and no plausible explanation had been offered for the delay in instituting the civil suit. The right of concurrent user of the mark 'Anand' was also asserted besides the assertion that the plaintiff had obtained the trade mark in question by misrepresentation. We have heard the learned counsel for the parties, while assailing the order under appeal it was contended that there was no justification with the trial court to modify its earlier order by which it had restrained the defendant in absolute terms from using the trade mark and infringing the copyrights. It was contended that the defendant's mark 'Anand' is deceptively similar to the plaintiffs' registered trade mark and in fact, the mark is exactly the same i.e. 'Anand'. The defendant's use of the mark is clearly intended to establish nexus between its own goods and the plaintiffs. As the plaintiff's trade mark is registered, it has a good prima facie case and the balance of convenience is in favour of the plaintiff. It was stressed that the plaintiff has acquired reputation for its products and as such if the defendant is permitted to carry on with the use of mark 'Anand' its reputation would suffer in the mark. Broadly the arguments on behalf of the plaintiff were confined to the question of infringement of trade mark and passing off.;