S.K.Mukherjee, J. - (1.) This is an appeal against the judgment and order dated December 4, 2001 passed by the learned District Judge rejecting an application under Order 39, Rules 1 and 2 read with section 151 of the Code of Civil Procedure filed by the plaintiff in other suit No. 2 of 2001.
(2.) Other Suit No. 2 of 2001 has been instituted by the plaintiff-appellant in the Court of the learned District Judge, Andaman and Nicobar Islands, inter alia, for permanent injunction. It is alleged by the plaintiff that the plaintiff has been carrying on business in the name and style of Sakthi Trading Company and the defendants have been carrying on business at Port Blair. The plaintiff has been carrying on business as a leading manufacturer of food products for long time and in the course of his business he adopted the trademark 'Shakti' for the food products manufactured by him. He had commenced the manufacturing and selling under the aforesaid trademark since 1977. He has registered the trademark in respect of turmeric powder on January 5, 1979 and, also, registered the said trademark for masala powder. The plaintiff has been spending huge sums of money for promoting the sales of his products under the trademark 'Sakthi' and because of such steps by the plaintiff, it has been alleged, the sales of his products sold under the trademark 'Sakthi' masala powders ran to several crore of rupees. The plaintiff has obtained the copy right registration for his various artistic work labels Sakthi. The plaintiff has been awarded during the years 1987 and 1988 by the Director of Industries and Commerce, Madras as an outstanding entrepreneur. In 1992, the plaintiff has been conferred with an award by the council for fair business. The plaintiff, also, bagged an excellent award from the Directorate of Industries and Commerce in 1997 and the national award for quality products in the year 1994 from the Ministry of Industries, Government of India. On December 3, 1998, the Ministry of Social Justice and Employment, Government of India, conferred on the plaintiff the national award for welfare of the people with disabilities. For the year 1996-97 the Government of Tamil Nadu declared the plaintiff as the best private employer. The plaintiff came to know during the second week of November, 2001 that the defendant No. 1 had commenced manufacturing and selling of masala powders under the offending trademark and the artistic work label 'Joysakthi' in Andaman and Nicobar Islands. The defendants No. 2 and 3 have been selling the aforesaid products in the city of Port Blair. It is alleged that the defendants have willfully chosen the trademark and artistic work 'Joysakthi' which has been identically, deceptively and phonetically similar to that of the plaintiff's well established trademark and artistic work in order to acquire unlawful gain under the reputation earned by the plaintiff. It is, further, alleged that by reason of user of the offending artistic work and the trademark 'Sakthi' by the defendants for masala powder, the plaintiff would be put to irreparable loss, hardship and injury.
(3.) On the basis of the aforesaid allegations, the plaintiff prayed for the following reliefs :- (a) granting permanent injunction restraining the defendants, by themselves, their servants or agents or anyone claiming through them from in any manner infringing the plaintiff's well established trademark SAKTHI together with peculiar colour scheme and get up by using the offending trademark SAKTHI together with identical colours scheme and get up or any other mark or marks which are in any way deceptively similar to or a colourable imitation of the plaintiff's well established trademark SAKTHI; (b) granting permanent injunction restraining the defendants, by themselves, their servants or agents or anyone claiming through them from in any manner infringing the plaintiff's copyright artistic work label SAKTHI by using the offending artistic work label SAKTHI together with identical colour scheme and get up or any other work or works which are in any way deceptively similar to or a colourable imitation of the plaintiff's copyrighted artistic work SAKTHI label; (c) granting permanent injunction restraining the defendants by, themselves, their servants or agents or anyone claiming through them from in any manner passing off of their masala powders bearing the offending trademark and artistic work SAKTHI as and for the celebrated masala powders of the plaintiff sold under the well established trademark and copyrighted artistic work SAKTHI either by selling or offering for sale or in any manner advertising the sale; (d) directing the defendants to render a true and faithful account of the profits earned by him by using offending trademark SAKTHI; (e) directing the defendants to surrender all the unused offending SAKTHI pouches, dyes, blocks etc. (f) directing the defendants to pay to the plaintiff's the costs of the suit; (g) pass such further or other orders as may be deemed fit and proper in the circumstances of the case and in the interest of justice.;