Pinaki Chandra Ghose, J. - (1.) This is an application filed by the petitioner inter alia for infringement of the petitioner's Registered Trade Mark by using a trade mark and/or label which resembles that of the petitioner and further from infringing the petitioner's copyright registered under No. A-55610/99 and further from passing off or attempting to pass or intending to pass off the design of the petitioner including the copyright and colour scheme as of the respondents.
(2.) The facts of the case are as follows : "The petitioner is a private limited company which duly took over the proprietorship concern of M/s. Kuber International (India) with all its assets and liabilities. By virtue of such taking over of the said company the petitioner is now carrying on business of manufacturer and marketing of khaini, chewing tobacco, pan masalas, gutkhas etc. and the said proprietorship concern merged with the petitioner in or about June, 1999. The petitioner's case is that the petitioner has a distinctive design, colour scheme and get up which is an artistic word under the meaning of Copyright Act, 1957 and the said design is duly registered under the provisions of Trade and Merchandise Marks Act, 1958 on June 22, 1989 in respect of khaini. The said registration is still valid and subsisting."
(3.) The petitioner after acquiring the business of the said Kuber International (India) is presently the proprietor of the said trade mark and entitled to use the same to the exclusion of others. The petitioner since 1984 is using the said design of pouches and in fact the petitioner's turnover increased since then from Rs. 7,77,861.07 p. in 1989-90 to Rs. 3,77,11,468 in 1999-2000. The petitioner also spent huge amount in respect of promotional expenses by way of advertisement.;