Padma Khastgir, J. - (1.) Kwality Ice Creams Limited filed a suit against India's Hobby Centre Pvt. Ltd. for a permanent injunction restraining the defendant from infringing in any way the petitioner's copyright No. A-30184/80 by the use of the expression on the device "Sub Zero" or any near resemblance thereof and also for an order of injunction restraining the defendants from passing on or selling or advertising or trading any Icecream and/or similar products under the name, label, device of 'Sub-Zero' or any near resemblance and for other consequential reliefs.
(2.) According to the petitioner it is a well known manufacturer and marketer through itself of Icecreams of superior quality in various places in India. The defendant until October 31st, 1982 was an agent of the petitioner for sale of petitioner's icecream products under the name 'Sub-Zero' at its business premises at No. 1A, Russel Street, Calcutta. By an agreement dated June 27, 1979, the petitioner appointed the defendant its agent to stock, display and sale its Icecreams under the name Sub Zero at a parlour of the said name within the said business premises of the defendant at 1A Russel Street, Calcutta which agreement provided that Kwality Icecream, the petitioner would be the Principal and the India's Hobby Centre, the agents. Under the said agreement the Principal would supply the Icecreams besides necessary equipments including display cabinet which would remain the property of the Principal to be sold from the said showroom of the agent at No. 1A, Russel Street, Calcutta and the Principal will replenish the stock as and when necessary. The agent was entitled to a commission of 10% or Rs. 4,200/- per month whichever is higher for conducting such sales. The Principal would provide the agents with technical and other staffs of their own to assist the agent to run their department smoothly. It was specifically provided that the agent shall not stock, sale or display any articles which were similar to that of the principal and daily sale proceeds would be collected by the agents and paid to the Principal every week after deducting 10% commission. The Principal had to arrange for packing materials, stationery goods which had to bear the name Sub Zero Icecream Parlour of India's Hobby Centre Pvt. Ltd. for Kwality Icecream products. The Principal had to bear and pay all the expenses for advertisement and publicity to be carried out by them to popularise the Icecream of the Parlour for betterment of the business. It was specifically provided therein that after expiry of 3 1/2 years, the agent shall have the right to terminate the agreement by giving seven months' written advance notice whereas the Principal shall have the right to terminate the agreement after the expiry of twelve calendar months by giving six months' written notice in advance. Under the last clause it was provided that all disputes and questions whatsoever between the parties touching that agreement regarding construction, application, determination of rights and liabilities or as to any act or deed, shall be referred to arbitration of Arbitrators, one to be appointed by each of the parties.
(3.) The petitioner as a manufacturer and marketer, appointed the defendant as an agent until 31st of October, 1982 under the said agreement. Disputes and differences having arisen by and between the parties the same was referred under the Arbitration Clause to the Arbitration of Mr. Justice R.N. Dutt and Mr. Justice S.K. Roy chowdhury as they then were. Thereafter a compromise was entered into which resulted in the award dated 18th of March, 1982 which provided that during the subsistence of the agreement dated 27th June, 1979 Kwality Icecreams Ltd. would not open any Icecream parlour of their own within the vicinity of one kilometer from No. 1A, Russell Street, Calcutta and would not use the name of Sub Zero Icecream Parlour in any other Icecream Parlour opened by the Kwality Icecream, but that would not prevent the petitioner from selling parlour Icecream to Icecream Parlours of other parts. Each party was directed to pay and bear its own costs. By notice in writing dated 22nd April, 1982 the petitioner duly terminated the said agreement on the expiry of October, 1982 in terms of the said agreement and served the said notice by registered post with acknowledgement due, on the defendant. Between the period 1979 to 1982 the petitioner had been selling huge quantities of Icecream manufactured by it and sold them at prices which ranged from 3,99,000/- even upto Rs. 26,38,000/- and odd. According to the petitioner the products of the petitioner under the name 'Sub Zero' were known to the public in India and were associated with the Icecream of the petitioner and the mark 'Sub Zero' became distinctive with the goods of the petitioner in the Indian market amongst the consumers of Icecreams. The petitioner applied for registration of the said trade mark 'Sub Zero' with the Registrar of Trade Marks which was accepted subject to the disclaimer as to the exclusive use of "Device of Icecream" and it was advertised in the Trade Mark Journal dated 7th July, 1980.;