HINDUSTAN EMBROIDERY MILLS PVT LTD Vs. K RAVINDRA AND CO

JUDGEMENT

(1.) This is a Notice of Motion taken out by the plaintiffs for an interlocutory injunction restraining the defendants from using the trade mark HEMLA in respect of embroidery goods or any other similar marks so as to infringe the registered trade marks of the plaintiffs, as also for an interlocutory injunction restraining the defendants from using the said trade mark on embroidery goods so as to pass off their goods as the goods of the plaintiffs.

(2.) The plaintiffs' case is that they were registered under the Companies Act some time in the year 1941 and started using the trade mark HEMLA right from that time on the goods embroidered by them in their factory near Amritsar. It is the plaintiffs' case that, in the year 1943, they got their trade mark HEMLA in cruciform as shown in annexure "A" to the plaint, registered under the Trade Marks Act in respect of embroidery goods, tapes, laces and edgings. Some time in the year 1965, the plaintiffs also got registered the said trade mark HEMLA in cruciform in respect of shawls, and, in the course of the same year, they got registered the trade mark HEMLA in script form also in respect of shawls. Those two trade marks as registered are shown in annexures "B" and "C" to the plaint. In para. 7 of the plaint, it is stated that the plaintiffs manufactured and sold embroidery goods on a large scale throughout India for over twenty-five years "under their trade marks HEMLA in its various forms," and have acquired an enviable reputation for the high quality of their goods. It is further stated in the said paragraph that the total turnover of the plaintiffs' goods was over seven crores of rupees and that the trade mark HEMLA is associated by traders and the public with the goods of the plaintiffs. In para. 8 of the plaint, it is stated that the plaintiffs, in the course of their business, used to receive cloth from other traders also for the manufacture of embroidery goods, and, after doing embroidery work on the same, they used to affix their mark HEMLA as also their Tex. Mark No. 537 thereon, as required by the Cotton and Yarn (Control) Order, 1943. In para. 10 of the plaint, it is stated that the defendants are selling embroidery goods not manufactured by the plaintiffs under the trade mark HEMLA, and when the plaintiffs objected to the same the defendants filed a "threats action" against the plaintiffs under Section 120 of the Trade and Merchandise Marks Act of 1958 being Suit No. 439 of 1967 in this Court. The plaintiffs' case is that, by using identical marks, the defendants have been infringing the plaintiffs' registered trade marks, and also passing off their goods as the goods of the plaintiffs. The plaintiffs have, therefore, filed the present suit for a permanent injunction restraining the defendants from infringing their registered trade marks, and also for a permanent injunction restraining the defendants from using the trade mark HEMLA on embroidery goods so as to pass off their goods as the goods of the plaintiffs, as well as for damages and other ancillary reliefs. They have thereafter taken out the present Motion for the reliefs already set out above.

(3.) In addition to the facts stated in the plaint, it is necessary to refer to the background of the disputes between the parties. The controlling interest in the company, which is a private limited company, was held by a family consisting of two brothers Gurdayalsingh and Ramsingh, and the said company carried on its business on a large scale at a place near Amritsar for some years. Thereafter, the same two brothers founded another concern at Faridabad named Hemla Embroidery Mills Ltd. in or about August 1958 and started putting up factory premises there which were completed some time in the year 1960. According to the plaintiffs, the whole of those premises at Faridabad were thereafter rented out by the plaintiff-Co. which set up their own machinery therein and employed their own labour and manufactured their own goods under their own Tex. Mark in that factory. It may be mentioned that, according to the defendants, however, what was rented out to the plaintiff-Co. was only a part of the said premises at Faridabad. Thereafter, on April 20, 1960, an agreement was entered into between the plaintiff-Co. and the said Hemla Embroidery Mills Pvt. Ltd. which had their registered office at Faridabad, a copy of which is annexed to the affidavit in rejoinder to the present Motion and marked "D". Under the said agreement, the plaintiff-Co. was to sell, inter alia, embroidered goods to the said Hemla Embroidery Mills Pvt. Ltd. at wholesale market rates. It was further provided in the said agreement that as and when the plaintiff- Co. placed an indent with the said Hemla Embroidery Mills Pvt. Ltd., the latter were to make purchases for and on behalf of the plaintiff-Co. at market rates. It is the contention of the plaintiffs that the said agreement really constituted Hemla Embroidery Mills Pvt. Ltd. the agents of the plaintiffs for the purposes mentioned therein. It was stated by Mr. Shavaksha in the course of his arguments before me that, from the year 1962, in order to distinguish goods which the plaintiffs embroidered at their Faridabad factory from the goods embroidered by them at their Amritsar factory, the plaintiffs used the trade mark HEMLA in what has been called "Chimney Form" on the goods which were made by the plaintiffs at the Faridabad factory which, according to them, they had rented out from the Hemla Embroidery Mills Pvt. Ltd. According to the plaintiffs, they however used to affix to the same their own ticket, a specimen of which is annexed to the affidavit in rejoinder and marked "C", and their own Tex. Mark thereon. According to the plaintiffs, this state of affairs continued till the year 1964 when disputes and differences arose between the branches of the two brothers, Gurdayalsingh and Ramsingh, and a division was effected between them which was finalised on March 31, 1965. Pursuant to that division, the plaintiff-Co. and its factory near Amritsar came to the share of Gurdayalsingh's branch, and the concern of Hemla Embroidery Mills Pvt. Ltd. and its factory at Faridabad came to the share of Ramsingh's branch.