Satya Prakash Pathak, J. - (1.) This is a defendant's appeal against the Judgment & decree dated 13/9/2005 passed by Addl. District & Sessions Judge (Fast Track), Rajsamand in Civil Original Suit No. 100/2004 (Miraj Products Pvt. Ltd. V. Ashish Tea Company & Ors.) allowing the suit filed by respondent-plaintiff for declaration and permanent injunction.
(2.) The facts leading to this case are that respondent-plaintiff filed a suit for permanent injunction, infringement of copyright, passing off trademark & goodwill and rendition of accounts in the trial Court with the averments that it is a limited company registered under the previsions of the Companies Act, 1956 having its registered office at Uper Ki Oden, Nathdwara, District Rajsamand (Rajasthan) and is entitled to the exclusive use of trademark 'Miraj' for the goods manufactured by it and, therefore, the defendants be restrained from using the said trademark.
(3.) The case set up by the plaintiff in the plaint was to the effect that plaintiff is engaged in the business of manufacturing and marketing tobacco and tea and proposed to enter in consumer eatable goods which are already specifically stated in the Memorandum of Association of the Company in the main objects and enumerated in Clause 2 & 3. It has further been stated that the plaintiff is the largest producer of lime mixed chewing tobacco in India and the plaintiff has its own production facilities. It is stated that the plaintiff started its business in the year 1987 and its trade name 'Miraj' has become quite famous for the reason that it was been given wide publicity at the national level and plaintiff is selling its goods all over the country in each and every state and each and every district. It has also been stated that plaintiff is well known for its innovative techniques and is also committed to quality conscious upgradation of its products and has research development facilities also. The business is stated to be in crores of rupees. It has also been stated that at the initial stage the business was started by Smt. Sushila Paliwal, a lady entrepreneur, who used to trade under the name & style of 'Miraj Zarda Udhyog' with the help of her husband and in view of the long using monogram of Miraj (artwork of Fighter plan), which was applied for registration on 10.08.1999 and was registered on 28.05.2001 under the Copyright Act, its goodwill is attached to the trademark and trade name Miraj. It has also been stated in the plaint that since 1987 crores of rupees have been spent on advertising and for promoting sales activities in India and the Excise Department has also approved the lable of the plaintiff under the trademark/trade name 'Miraj' from time to time. It has been stated in Para 13 of the plaint that in order to obtain statutory protection to the mark/trade name/goodwill under the title 'Miraj, the plaintiff has obtained registration for its artistic work under the title Miraj' and same has been accepted by the Registrar of Trade Marks as well as by the Registrar of Copyrights. The registration Number of the copyrights have been stated to be as A-59494/2001 and A/56654/99. In Para 14 of the plaint it has been stated that as the plaintiff's trademark/ trade name/ goodwill/ copyright under the title 'Miraj' has huge market reputation and goodwill in the competitive market, therefore, the plaintiff preferred to take defensive registration to avoid the duplication/infringement/ passing off its goodwill/ trademark/ trade name etc. It is also stated that the plaintiff applied in respect of the goods in other classes also on 30/10/1998 as contained in Schedule IV of the Trade and Merchandise Marks Act, 1958 (hereinafter to be referred as 'the Act') and in the month of July 2002 when it came to the notice of the plaintiff that defendant No. 1 Ashish Tea Company was doing business of manufacturing and marketing tea under the identical and/or deceptively similar to the registered trademark/trade name of plaintiff i.e., 'Miraj', a notice was sent on 10th July 2002 to the defendant not to use the copyright trademark name of the plaintiff. It is further stated that the defendant while replying to the notice on 25.07.2002 did not deny specifically about the goodwill earned by the plaintiff in the business but stated that the plaintiff deals in chewing tobacco business whereas the defendant deals in tea business, therefore, there is no chance of any confusion in the minds of customers. It is said that when plaintiff made enquiries, it came to its notice that the defendant applied for the copyright on 19.08.2002 obtained copyright certificate on 30.06.2003 in relation to the trademark of plaintiff and its wrapper and on coming to know about this, objections were filed before the Registrar of Copyrights. It is also stated that the mala fides of the defendant is evident from the fact that defendant has adopted the trademark/trade name of the plaintiff 'Miraj' by scanning exactly the plaintiff's lable and similarly by using the trademark/trade name 'Miraj', which is identical to the mark of plaintiff, in a fraudulent manner taking advantage of the goodwill earned by the plaintiff. It is also stated that the defendant had knowledge before starting selling their tea under the title 'Miraj' in wrappers of the same colour combination, which is being used by the plaintiff for its products since long. It was also stated in the plaint that defendant No. 2 is the selling agent of goods manufactured by defendant No. 1, therefore, he was also liable to be restrained by a perpetual injunction not to sell the goods manufactured by defendant No. 1 which are in the trade name of 'Miraj'. It was also stated that on account of defendant's using the trademark of the plaintiff, the reputation of the plaintiff is being tarnished and the business is being put to loss. It was prayed that by issuing permanent injunction the defendants, their servants, agents stockist and all other persons acting on their behalf be restrained from using trademark/trade name/copyright under the title 'Miraj' in respect of tea or any other allied and cognate goods or any other trademark/marks/copyright which are identical with and/or deceptively similar to the plaintiff's trademark/trade name/copyright under the title 'Miraj' and also restrain them from doing anything amounting to passing off their goods as the goods of the plaintiff. A prayer was also made regarding rendition of accounts.;