ANIL KUMAR, J.(Oral)

IA No.4575/2005 and IA 4820/2005

1. This order will dispose of plaintiffs application under Order 39 Rules 1 and 2 read with Section 151 of Code of Civil Procedure seeking restraint against the defendants from using the mark “Super Postman” for sale of edible groundnut oils or any other cognate products and the application of the defendant nos. 1 and 2 under Order 39 Rule 4 read with Section 151 of Code of Civil Procedure for vacation of ex-parte interim order dated 30th May, 2005 whereby the defendants were restrained from using the mark Super Postman or any other mark deceptively similar thereto for sale of edible groundnut oils or any other cognate products.

2. The suit on behalf of plaintiff No.1, a partnership firm was filed by a Court receiver appointed by High Court of Judicature at Mumbai by order dated 6.7.2000 in Suit No.4913/2000 titled Majid A Oomerbhoy Vs. Rashid S.Oomerbhoy and others, who had taken over the possession of partnership business assets which was trading as M/s.Ahmed Mills. It is contended that plaintiff No.1 is a registered partnership firm which was trading in the name of M/s.Ahmed Mills. The suit is also filed against defendants Nos.3 to 8 who are partners of the partnership firm though no relief has been prayed against them.

3. Plaintiff No.1 is carrying on business of manufacture, distribution, sale and dealing in edible oils for last more than 50 years under its various trade marks including Postman, Tilola, Mastaan, Sona, Oomda, A.O.Coconut Oil etc. The marks are registered under the Trade and Merchandise Act, 1958. The firm also has a copyright for the artistic labels under the Copyright Act, 1957. The edible oils of the plaintiff No.1 are sold since 1949 under the brand name `Postman in containers and bottles of distinctive design, shape, color, scheme, lay out and appearance. It is asserted on behalf of plaintiffs that postman is a completely arbitrary word for edible oil and the design of plaintiff No.1 belonged exclusively to plaintiff No.1. The trade marks of the plaintiff No.1 are registered in respect of refined groundnut oil, edible, in Class 29 in Part A of the register in India which registrations are still valid. It is also emphasized that shape and design of the product packs of the plaintiff No.1 are also registered with Controller General of Patents and Design. Though the design registered with effect from 29th March, 1989 expired in 2004, however, the shape of the Postman groundnut oil bottle has become distinctive and is associated with the products of the plaintiff No.1. The mark and device of Postman have acquired substantial reputation and goodwill in the market on account of use of its mark continuously and extensively up to the year 2000.

4. The contention of the plaintiff is that despite the disputes between the partners of the plaintiff No.1, on account of vested statutory and common law rights, the trade mark `Postman and device of `Postman as adopted by the plaintiffs for the first time, plaintiff No.1 is legally entitled to use the same to the exclusion of others. Plaintiffs gave the details of large sums of money spent by plaintiff No.1 in popularizing the trademark/brand name `Postman from 1990-91 up to 1999-2000. The plaintiffs averred that sometime in December, 2004 it came to their knowledge that `Jagdamba Vegetable Products Private Limited, defendant No.2 had commenced manufacture, distribution, sale and marketing of refined groundnut oil under the name and device of `Super Postman”. Defendants No.1 and 2 were also using, according to the averments made by the plaintiffs, similar color scheme, label and container shape without the consent and authorization of plaintiff No.1, amounting to infringement of the trademark of the plaintiffs for identical goods and infringing the copyright of the plaintiff No.1 by using a color scheme of blue and yellow which is distinctive of blue color of the Postman on the groundnut pack and the yellow color

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