Soumen Sen, J. - (1.) The Court : The advent of summer with mercury rising and unusual heat wave notwithstanding nor'wester Ice cream makes its demand inevitable and with Kwality ice cream which has gained immense popularity over a period of time it is only natural that right over the trademark 'Kwality' in one day or the other would become a contentious matter with all the stakeholders likely to claim as far as they could go to establish its right over the others in relation to the said brand name.
(2.) The instant suit is the outcome of a rivalry between the plaintiffs and the defendant in relation to the trademark 'Kwality'. The plaintiff no.1 is not the original owner of the trademark. The plaintiff no.1 claims to an assignee of 'Kwality' trademark from the original proprietor. The plaintiff no.2 and its predecessors are claiming to have been using the trademark 'Kwality' since 1995 under a licence granted by the plaintiff no.1 and its predecessors and/or manufacturing and/or trading in a wide varieties of goods including ice cream/frozen desert. The petitioner has given narration of events and devolution of the trademark 'Kwality' upon the petitioners. A detailed discussion on the devolution of the trademark upon the petitioners is not necessary at this stage, save and except that it has been acknowledged that Ghai and Lambas were the persons who conceived the mark 'Kwality' and with the growth of business and the popularity gained over companies were incorporated and they have arranged their business amongst them with special emphasis on territories and they have accordingly re-arranged their business. It is stated that between 1982 and 1984 the shareholders of Kwality Frozen Foods Pvt. Ltd., agreed to bifurcate the business of the company into four territories and Kwality Ice cream India Ltd, Calcutta became the proprietor of the original trademark nos.178269, 255297 and 255298 since renumbered as 435334, 435335 and 435336 after bifurcation in respect of ice cream, ice cream on stick for eastern region.
(3.) The petitioners contend that under the Strategic Alliance Agreement it was agreed that use of the 'Kwality/sub-Zero' name in the corporate name shall be subject to the condition that Kwality Dairy India Limited which was a subsidiary of Kwality Ice Creams (India) Limited and described in the Strategic Alliance Agreement as K (East) shall at all times hold 1/3rd of the voting capital in companies 1 and 2 and 1/6th of such capital in companies 3 and 4 which includes Kwality Dairy India Limited and since K (East) is no more holding 1/6th of share capital in Kwality Dairy India Limited since 2002-2003, the use of "Kwality/sub-Zero" name in the corporate name by the defendant is unauthorized. The petitioner has made a further reference to deed of assignment of "Kwality" trademark between K (East) and Digital Securities Private Limited to show that in the recital it has been specifically mentioned that on a consideration of Rs.3 crores, K (East) has assigned and transferred to digital their right, title, claim and interest benefit, goodwill in relation to the said trademark as fully recorded in the schedules in favour of Digital being the predecessors in interest of plaintiff no.1.;