Padma Khastgir, J. - (1.) This application has been taken out by Bijoli Gril Spencer's Product, a firm, against Spencers & Co. Ltd. and Spencer Acrated Water Factory Pvt. Ltd. (in Liquidation) for an order of injunction restraining the defendant No. 1 Spencers & Co. Ltd. and its servants, agents and assigns in any way from interfering with the petitioner's right to use and enjoy the trade mark and/or associated marks and the trade name "Spencer" as successor-in-intercst of the defendant No. 2 concurrently with the defendant No. 1 in relation to mineral aerated waters and beverages and for other consequential reliefs.
(2.) In the plaint filed by the plaintiff against the defendants the plaintiff has asked for declaration to the effect that the defen-dant No. 2 was the registered proprietor of the trade marks and associated trade marks mentioned in the plaint and the trade name "spencer". Further, it was entitled to use its trade name containing the word 'spencer' in relation to mineral, aerated waters and beverages which was the predecessor-in-title and business of the plaintiff; declaration that the defendant No. 2 had the right to and was entitled to use the trade mark and the associated trade marks mentioned in the plaint and the trade name "spencer" in relation to mineral, aerated waters and beverages. Thirdly the plaintiff also has asked in the plaint for declaration that the defendant No. 1 is entitled to use its alleged trade marks subject to the condition and limitation of concurrent user thereof with the marks of the defendant No. 2 and the plain-tiff as mentioned in the plaint itself. Plaintiff also prayed for perpetual injunction restraining the defendant No. 1, its servants, agents and assigns in any way from interfering with the plaintiffs right to use and enjoy the said trade mark and for other consequential reliefs.
(3.) The mark 'spencer's' being the mark No. 6108 was duly registered under the Trade Marks Act, 1940 by one Sm. Bhakti Datta, who carried on the business under the name and style of Spencers & Co. Ltd. and Spencer Aerated Water Manufacturing Co. since 1929 continuously by using the said trade mark 'spencers' in relation to mineral and aerated waters. According to the plaintiff, the said Sm. Bhakti Datta bona fide used her trade or business name containing the word '"spencer" in relation to the said goods. On 6th of Oct., 1942 the said mark was duly registered under the Trade Marks Act, 1940 and Sm. Bhakti Datta was the registered proprietor of the said mark 'Spencer's'. She continuously used the said mark and/or trade mark in relation to mineral and aerated waters. Thereafter the said trade mark was duly assigned by the said Sm. Bhakti Datta in favour of the Spencer Aerated Water Factory Pvt. Ltd.. the defendant No. 2. now in liquidation, and the same was duly entered in the register of trade marks which was duly notified on the 1st Sept., 1961. As a result the defendant No. 2 became the registered proprietor of the aforesaid trade mark. With the mark 'spencer's' various other marks in respect of aerated waters and drinks, soda water, ginger, spencer's soda and various other items of similar nature were registered. Full particulars whereof had been given in para 3 of the plaint. Since 1st of Sept., 1961 the defendant No. 2 continuously used the said trade mark and associated trade marks in relation to the aforesaid mineral, aerated waters and beverages till 1975. By the order dated 23rd Sept., 1975 the defendant No. 2 was directed to be wound up and the Official Liquidator was appointed Liquidator of the defendant No. 2. On July 24, 1947, the defendant No. I applied before the Registrar of Trade Mark, Bombay, for registration of the mark "Spencer's Soda Water" and the defendant No. 1 also applied before the Registrar of Trade Mark, Bombay, for registration of the mark "Spencer & Co. Ltd." and on Aug. 14, 1961 the defendant No. 1 applied before the authority for registration of the mark "Spencer's" and obtained the same. On Jan. 9, 1974 the defendant No. 1 applied for the mark "Spencer's" being Trade Mark No. 293438. Thereafter, the business of the defendant No. 2 as indicated earlier was completely closed and by an order dated 23rd Sept., 1975 of this Hon'blc Court the defendant No. 2 was directed to be wound up and the Official Liquidator was appointed Liquidator. Thereafter, since 1975 all the associated trade marks registered by the defendant No. 2 being associated with the Patent Mark No. 6108 were removed from the register due to non-renewal thereof upon the expiry of 7 years from their respective dates of registration. The defendant No. 1 by virtue of the registration made in its favour, between March, 1977 and 30th April, 1978 manufactured and sold aerated water in Calcutta. Thereafter, the parent Trade Mark No. 6108 of the Spencer Aerated Water Works Pvt. Ltd. was also removed from the Register of Trade Mark for non-payment, on Oct. 4, 1978.;