- (1.) THE first appellant was an Italian Company and affiliate of H. J. Heinz Company and the trade mark GLUCON-D owned by Glaxo India limited was assigned to the first appellant along with goodwill of the business in which the mark was used by a Deed of Assignment dated 30th September, 1994. The Glaxo India Limited also assigned their rights in the artistic work used on the packaging of the said trade mark to the first appellant. The Glaxo india Limited was selling goods with trade mark GLUCON-D since 1940.
(2.) THE second appellant, a subsidiary of the first appellant, is a company incorporated in India and also an affiliate of H, J. Heinz which has been permitted licensed user of inter alia the trade mark GLUCON-D in India. The appellant claims to be proprietor of inter alia the trade mark GLUCON-D registered under No. 304644 in class 30 and application for registration of the label in which the goods under the trade mark GLUCON-D are sold including the application for recordal of the second appellant as subsequent proprietor of the aforesaid trade marks are pending with Registrar of Trade Marks, moreover, applications for registration of present labels for the goods sold under the trade mark GLUCON-D are pending before the Registrar of Trade marks. The said trade mark is claimed to have been assigned to the first appellant by the Glaxo India along with goodwill of the business. It is the further case of the appellant that the energy drink under the trade mark of GLUCON-D is sold in a distinctive packaging consisting of distinctive colour scheme predominantly of the colour green consisting inter alia of the photograph of a family of three, father, mother and son drinking GLUCON-D. The appellant claimed that the packaging has been designed for and on behalf of the appellants and the copyright in the artistic work with the packaging vests with the appellants. In or around July, 2002 the second appellant learnt that defendant No. 1 (respondent No. 1) had started selling an energy drink under the trade mark GLUCOSE-D in a packing, the overall impression of which was the same as that of the appellants packaging of goods sold under the aforesaid trade mark. The trade mark of the respondents/defendants GLUCOSE-D and the packaging it is stated, being deceptively similar and in violation of the rights of the appellants in the trade mark getup and trade dress related to the trade mark GLUCON-D. A suit was instituted by the appellants in February, 2003 against the respondents before the learned District Judge, Gurgoan with a prayer for an injunction and for damages inter alia on the ground for infringement of trade mark and/or passing off of trade mark and infringement of copyright in the said suit being No. 2 of 2003 before the learned Additional district Judge, Gurgoan. The respondents filed a written statement contending inter alia that it had discontinued the said packaging complained of as new packaging was introduced. Inquiries made by the appellants in this regard reveal that the respondent had changed its packaging and introduced new packaging which was deceptively even more similar to the appellants packaging. According to the appellants, the new packaging was a clear attempt by the respondent No. 1 to chose as close as possible to the packaging and trade dress of the appellants and to trade upon the reputation and goodwill of the appellants. Therefore the appellants instituted a suit being C. S. No. 138 of 2003 on the file of this Court. The appellants similarly filed an application under order XXIX Rules 1 and 2 of the Code of Civil Procedure 1908 for grant of ad interim injunction restraining the respondents from using the trade mark glucose-D for any other trade mark deceptively similar to the appellants' trade mark GLUCON-D and from using any packaging/trade dress deceptively similar to that of the appellants. On 8th May, 2003 this Hon'ble Court was pleased to pass an order of ad interim injunction against the respondents in terms of prayer (b) which was again modified on 15th May, 2003 to the extent that the respondent No. 1 be restrained from using the trade mark of the appellants which was GLUCON-D and was deceptively similar to the copyright of the appellants. The respondents was further directed to keep accounts in respect of the sale of the product and furnish the copy of such accounts to the appellants every month, and later by an order dated 9th June, 2003 the word 'month' stated earlier was clarified so as to-mean 'the month beginning from the first to the last of the month'. On August 29, 2003 the said injunction application was heard and dismissed on the ground that the present suit was not maintainable in absence of leave of the Gurgoan Court where the suit was instituted. The Hon'ble Court also directed that the modified interim order dated 15th May, 2003 would be continued for a further period of 15 days from the date hereof.
(3.) BEING aggrieved by the judgment and order dated 29th August, 2003 the appellants moved an appeal before the Division Bench of this Hon'ble court.;