- (1.) THE defendants have filed this appeal against the judgment/order of the learned Single Judge dated 21st February, 2008 whereby the appellants have been restrained from using the name "bapuji" in connection with any confectioneryppropriate to notice the essential facts as pleaded by the parties.
(2.) THE plaintiff "new Howrah Bakery (Bapuji) Pvt. Ltd. is a company incorporated on 1st January 1998 under the provisions of the Companies Act. It carries on business in manufacturing and selling of various kinds of bread, cakes, biscuits and confectionery products under the trade mark and name "bapuji". Smt. Aparna jana was the owner of the trade mark and name "bapuji" and has been carrying on business as such since 1973. By a deed of sale dated 1st April 1998 she had transferred and assigned all rights in the trade mark and name to the plaintiff. Aparna Jana apart from being the registered owner of the trade mark "bapuji" was also the registered owner/copyright in the name "bapuji". The plaintiff is at present the registered owner of the trade mark and name.
(3.) INITIALLY, the business belonged to Sital Chandra Laha who had been running the same since 1969 with the assistance of his daughter Aparna Jana. The first defendant Pratyush Kumar Jana is the nephew (brother's son) of Aparna Jana's husband Sri Alokesh jana. Defendant no. 1 and his father Prakash Jana were residing with Aparna Jana and her husband. It is claimed by the plaintiff that food, lodging and expenses for the education of defendant no. 1 were looked after by Aparna Jana and her husband. Prakash Jana left for his native village in 1975 and her nephew continued to live with his uncle and aunt. During this period the nephew was employed by the aunt to look after the legal and administrative work of the bakery. This arrangement continued till 16th April, 1987. She had reposed full confidence in her nephew and he was looking after the business and had full knowledge and was aware of the trade mark "bapuji" which belonged to and was used by her. She being the original and sole owner of the trade mark "bapuji" had been using it since 10th April, 1973 openly and uninterruptedly without any objection from any one including defendant no. 1. Initially, the trade mark "bapuji" was registered in the name of the proprietor firm of Aparna Jana, namely, (New Howrah Bakery and Confectionery) on 5th August, 1987 in Class 30. Before registration of the trade mark in the name of Aparna Jana, notice of opposition was lodged by defendant no. 1 as the sole proprietor of M/s. New Bapuji Bakery on 26th December, 1991. On investigation of the entire matter, the Deputy Registrar, Trade Marks by an order dated September 13, 1995 disallowed the opposition of defendant no. 1 and allowed the application of the plaintiff to proceed for registration. Against this order the defendant no. 1 filed an appeal in this Court under the provisions of Section 109 of the Trade and merchandise Mark Act, 1958 on 16th September, 1995. This appeal was dismissed by Justice Sujit Kumar Sinha by order dated February 27, 1998. Dissatisfied, the defendant no. 1 filed an appeal before the division Bench which was dismissed on 26th July, 2000. Being aggrieved by the order of the Division Bench, defendant no. 1 filed slp which was dismissed by the Supreme Court by an order dated february 12, 2001. On November 15, 2001, the trade mark certificate was issued by the Registrar, Trade Marks in favour of the plaintiff. The trade mark has been renewed on 5th August, 2001 for a period of 7 years.;