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1995 Supreme(Bom) 261
IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
B.U. Wahane, J.
B.D.A. Limited.... Appellants.
Versus
Shaw Wallace Company Ltd..... Respondents.
Advocates appeared :
V.R. Manohar,Sr. Counsel, V.C. Daga, S.P. Dharmadhikari A.B. Oka, for the appellant.
A.K. Sen, S.C., Arvind Bobde, V.A Bobde, S.C., M.G. Ramchandran A.V. Mohta, for the respondent.
Headnote:
TRADE MARK - SUIT FOR INJUNCTION - OWNERSHIP OF TRADE MARK - PASSING OFF - BALANCE OF CONVENIENCE - ADMISSION - EVIDENCE ACT, 1872, SECTIONS 17 TO 21.
Fact of the Case:
The plaintiff, B.D.A. Limited, a company incorporated and registered under the Companies Act, 1956, carrying on business as manufacturer and distributor of Indian made foreign liquor, filed three suits against the defendant, Shaw Wallace Company Ltd., also incorporated and registered under the Companies Act, 1956, carrying on business, inter alia, as manufacturer and distributors of Indian made foreign liquor, for injunction restraining the defendant from making use of the trade marks "Karmozov" (Vodka), "London Lime" (Gin), and "Ricardo" (white rum). The plaintiff claimed to be the exclusive owner of the said trade marks and labels and entitled to the exclusive use thereof. The defendant denied the plaintiff's ownership of the trade marks and labels and claimed to be the owner thereof. The defendant also raised preliminary objections, including the suit being misconceived and not maintainable and the Court at Nagpur having no jurisdiction to try the suit.
Finding of the Court:
The Court held that the plaintiff was the owner of the three trade marks in dispute and was entitled to an injunction restraining the defendant from using the same. The Court found that the plaintiff had conceived, adopted, and applied for registration of the trade marks, and that the defendant had acknowledged the plaintiff's ownership of the trade marks on several occasions. The Court also found that the balance of convenience lay in favor of the plaintiff, as the defendant's continued use of the trade marks would cause irreparable harm to the plaintiff's business.
Issues: 1. Whether the plaintiff is the owner of the trade marks in dispute? 2. Whether the plaintiff is entitled to an injunction restraining the defendant from using the trade marks in dispute? 3. Whether the balance of convenience lies in favor of the plaintiff?
Ratio Decidendi: 1. The Court held that the plaintiff was the owner of the trade marks in dispute based on the following findings: * The plaintiff had conceived, adopted, and applied for registration of the trade marks. * The defendant had acknowledged the plaintiff's ownership of the trade marks on several occasions. * The plaintiff had placed on record voluminous material and documents to show that the trade marks/trade labels were conceived by the plaintiff. * The defendant's explanation that the letters acknowledging the plaintiff's ownership were written by subsidiary companies without authority was not satisfactory. 2. The Court held that the plaintiff was entitled to an injunction restraining the defendant from using the trade marks in dispute based on the following findings: * The defendant's continued use of the trade marks would cause irreparable harm to the plaintiff's business. * The balance of convenience lay in favor of the plaintiff. 3. The Court held that the balance of convenience lay in favor of the plaintiff based on the following findings: * The defendant's continued use of the trade marks would cause irreparable harm to the plaintiff's business. * The plaintiff had a strong prima facie case.
Final Decision: The Court allowed the plaintiff's appeals, set aside the impugned orders of the trial court, and granted injunctions restraining the defendant from using the trade marks in dispute.
B.U. WAHANE, J. :--Blood is thick than water is exclaimed universally. No distance breaks the tie of blood; brothers are brothers evermore. Brothers foregoing world of pleasure for youngers of same blood seems to have baried in annals of history under the sway and sweep of material commercialization, likewise respect and reverance to elderly and old venerated souls, pitiably feded in thin air. Robert Browning said "Brother's love exceeds all the world's lives in its unworldliness".
2. But the phenomenon of family fued not infrequently had disastrously decreed the course of history to the detriment of many erstwhile illustrious family.
3. Greed of wealth remains arbitrar of destiny of many petty souls, where worldly wisdom is extolled and altruism detested. Milton in 'Paradise Regain' said : "Money brings honour, friends conquest and realms".
Barnord Shaw said :
"The universal regard for money is the one hypothetical fact in our civilization. Money is the most important thing in the world. It represents health, strength, honour, generocity and duty. None the less of its virtues, is that it destroys best people as certainly as it fortifies and dignifies the nobel people".
Thus, it is clear that "Money, thou bane of bliss and source of woe".
4. These three appeals viz. A.O. No. 76/92 (arising out of Civil Suit No. 5/92 in respect of trade mark "Karmozov" (Vodka), A.O. No. 79/92 (arising out of Civil Suit No. 4/92 in respect of trade mark "London Lime" (Gin) and A.O. No. 78/92 (arising out of Civil Suit No. 3/92 in respect of trade mark "Ricardo" (white rum) are directed against the common order passed by the learned District Judge, Nagpur, on Exh. Nos. 5 (sic 4), 5 and 6 respectively, vacating the ad-interim temporary injunction granted earlier in favour of the plaintiff vide order dtd. 11-8-1992 and thereby dismissing the applications for seeking interim injunction against the defendants, its servant, agents and any person claiming by or under through them including subsidiary companies and tie-up units, restraining them from making use of the trade marks "Karmozov", "London Lime" and "Ricardo".
5. The facts giving rise to the present A.Os. are in nutshell, as follows:
The plaintiff-B.D.A. Limited is a Company incorporated and registered under the provisions of Companies Act, 1956 carrying business as manufacturer and distributor of Indian made foreign liquor. Prior to 27th January, 1992 the name of the plaintiff company was B.D.A. Brewaries and Distilleries Ltd. The defendant Shaw Wallace Company Ltd. which is incorporated and registered under the Companies Act, 1956 also carries on business of inter-alia as manufacturer and distributors of Indian made foreign liquor.
6. Prior to 3rd August, 1990 the plaintiff was a subsidiary of Arunava Investments Ltd. The said Arunava Investments Ltd. was a subsidiary of Paraganas Investments Ltd.. The said Paraganas Investments Ltd., was a subsidiary of Cruickshank Company Ltd. and the said Cruickshank Company Ltd. is 100% subsidiary of defendant-Company. Therefore, the plaintiff was a part of defendant's group prior to 3rd August, 1990. Since 3rd August, 1990 the plaintiff-company ceased to be a subsidiary of Arunava Investments Ltd..
7. Before 30-1-1992, Shri Shovan Roy was and is an employee and Vice-President of the defendant-Company. He is incharge of one of the defendant's liquor divisions run through Cruickshank and Company Ltd.. Prior to plaintiff's ceasing to be a subsidiary of the defendant, Shri Shovan Roy's services were lent to the plaintiff by the defendant inter alia as Director of the plaintiff-Company. Since 3rd August, 1990 Shri Shovan Roy ceased to be the Director of the plaintiff-Company, since the plaintiff-Company ceased to be the subsidiary of the defendant. However, his services were made available to the plaintiff by the defendant in the capacity of a Constituted Attorney of the plaintiff-Company by virtue of the Power of Attorney dtd. 26-12-1990 issued by the
