BHAVNESH MOHANLAL AMIN vs NIRMA CHEMICAL WORKS LTD

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(Guj) 351

Gujarat High Court
Judgename :K.S.JHAVERI
BHAVNESH MOHANLAL AMIN - Appellant
Versus
NIRMA CHEMICAL WORKS LTD - Respondent
APPEAL FROM ORDER 90 of 2000
Decided On : 05/09/2005

Advocates Appeared: K.B.TRIVEDI, P.M.THAKKAR, Premal S.Rachh, TEJAS BAROT, Y.J.TRIVEDI, Y.M.THAKKAR

Headnote:[Indian] Companies Act, 1956 (Central Act 1 of 1956) - Indian Trust Act, 1882 (Central Act 2 of 1882) - Trade and Merchandise Act, 1958 (Central Act 43 of 1958) - Sections 16, 28(1), 29(2) & 47(3) - Trade mark - Infringement of - Temporary injunction - Sustainability - At the stage it is not appropriate to consider the matter on merit - Court is only required to consider existence of prima facie case, balance of convenience and irreparable loss were to follow or not - In this case plaintiff got registration of names Nirma & Nima and also applied for exclusive right to use the same words - Appellant defendants have adopted and started using the word Nima for marketing their flour mills - It is infringement of plaintiffs registered trade-marks - Non use of a trade-mark may be ground for rectification but so far it is subsisting defendants in the case has no right to start infringement - Contention of delay in the case is also of no substance because defendants were put to notice at the earlier available opportunity - In view of this all the ingredients required for grant of temporary injunction are present in the case and trial Court has committed no illegality or improperity in granting impugned temporary injunction.
       Cases Referred :
       Cadila Health Care vs. Cadila Pharmaceuticals, 2001 PTC 300 (SC) = 2001 (1) CTMR 288 (SC) = JT 2001 (4) SC 243;; Macmillan & Co. vs. K. & J. Cooper, AIR 1924 PC 75;; Thomas Bear & Sons (India) Ltd. vs. Prayag Narain & Anr., AIR 1940 PC 86;; Edwards vs. Dennis, 1885 Chancery Division Vol. 30 454;; Three-N-Products (P) Ltd. vs. Pardesi General Store & Ors., 2000 (20) PTC 489;; Alkem Laboratories Pvt. Ltd vs. Alchem (India) Ltd., IPLR 1999 October 352;; Relaxo Rubber Ltd. & Anr. vs. Aman Cable Industries & Anr., 1998 PTC (18) 759;; Reliance Industries Ltd. vs. Reliance Polycrete Ltd., 1997 PTC (17) 581;; Vishnudas Trading as Vishnudas Kishandas vs. Vazir Sultan Tobacco Co. Otd., Hyderabad & Anr.., AIR 1996 SC 2275 = 1997 (4) SCC 201;; Kellogg Company vs. Pravin Kumar Bhadabhai, 1996 PTC (16) 187;; Exxon Corporation, New York, U.S.A. vs. Exxon Packing Systems Pvt. Ltd., Hyderabad, AIR 1989 Mad 182;; Soni Kabushiki Kaisha vs. Shamrao Maskar & Ors., AIR 1985 Bom 327;; R.J. Reynolds Tobacco Co. vs. I.T.C. Ltd., IPLR 1990 85 = 1987 PTC 57 (Del);; American Home Products Corporation vs. Mac Laboratories Pvt. Ltd. & Anr., AIR 1986 SC 137;; London Rubber Co. vs. Durex Products Incorporated & Anr., AIR 1963 SC 1882;; Corn Products Refining Co. vs. Shangrila Food Products Ltd., AIR 1960 SC 142 = 1960 (1) SCR 968 = 1960 SCJ 509;; Rustom Ali Molla & Ors. vs. Bata Shoe Co. Ltd., AIR 1957 Cal 120;; Gaw Kan Lye vs. Saw Kyone Saing, AIR 1939 Rangoon 343;; Anglo Indian Drug and Chemical Co. vs. Swastik Oil Mills Co. Ltd., AIR 1935 Bom 101;; Nestles Products Ltd. & Ors. vs. M/s. Milkmade Corporation & Anr., AIR 1974 Del 40;; Mahendra & Mahendra Paper Mills Ltd. vs. Mahindra & Mahindra Ltd., AIR 2000 SC 117 = 2001 (2) CTMR 597 (SC);; Satyam Infoway Ltd. vs. Sifynet Solutions (P) Ltd., 2004 (6) SCC 145;; M/s. Jugmug Electric & Radio Co. vs. M/s. Telerad Pvt. Ltd., AIR 1977 Del 152;; Ellora Industries vs. Banarasi Dass, AIR 1980 Del 254;; Surjit Singh vs. M/s. Alembic Glass Industries Ltd., AIR 1987 Del 319;; Daimler Benz Aktiegesellschaft vs. Hybo Hindustan, AIR 1994 Del 239;; Sunder Parmanand Lalwani vs. Caltex (India) Ltd., AIR 1969 Bom 24;; Kirloskar Diesel Recon Pvt. Ltd. vs. Kirloskar Proprietory Ltd., AIR 1996 Bom 149;; Essel Packaging Ltd. vs. Essel Tea Exports Ltd., AIR 1998 Bom 102;; Bata India Ltd. vs. Pyarelal & Co., AIR 1985 All 242;; Honda Motors Co. Ltd. vs. Charanjit Singh & Ors., 2003 (26) PTC 1 (Del);; S.K. Patel vs. Deputy Registrar of Trade Marks & Ors., 2004 (29) PTC 634 (IPAB);; Caterpillar Inc. U.S.A. vs. Jorange & Anr., 1998 (1) Arb LR 670 = CTMR 1998 (1) 670 = 1998 (18) PTC 31;; Poddar Tyres Ltd. vs. Bedrock Sales Corporation Ltd., AIR 1993 Bom 237;; Vishnudas vs. Vazir Sultan, AIR 1996 SC 2275 = 1997 (4) SCC 201;; Tube Investments of India Ltd. vs. Trade Industries, Rajasthan, 1997 (6) SCC pg. 35;; Shantaben Karsanbhai Patel & Ors. vs. S.C. Jain & Anr., 2001 (2) CTMR 47 (Del);; Polson Ltd. vs. Polson Dairy Ltd., 1996 PTC (16) 709;; Second Sight Ltd. vs. Novell U.K. Ltd. and Novell INC, 1995 RPC 423;; Ruston & Hornby Ltd., AIR 1970 SC 1649;; Laxmikant V. Patel vs. Chetanbhat Shah & Anr., AIR 2002 SC 275;; Simatul Chemical Industries Pvt. Ltd. vs. Cibatul, AIR 1978 Guj 216;; Ciba Ltd. vs. M. Ramalingam, AIR 1958 Bom 56;; Laxmikant Patel vs. Chetanbhai Shah, AIR 2001 SCW 4989;; Rupa & Co. Ltd. vs. Dawn Mills Co. Ltd., AIR 1998 Guj 247;; Midas Hygiene Industries P. Ltd. vs. Sudhir Bhatia, 2004 (3) SCC 90 = 2004 (28) PTC 121;; J. Zeenath Bivi vs. M. Khader Ibrahim & Ors., CTMR 2004 (1) 162;; N.R. Dongre vs. Whirlpool Corpn., 1996 PTC (16) 583;; Hindustan Embroidery Mills Pvt. Ltd. vs. K. Ravindra & Co., 1967 (76) BLR 146;; National Garments, Kaloor, Cochin vs. National Apparels, Ernakulam, Cochin, AIR 1990 Ker 119;; Cadila Pharmaceuiticals vs. Torrent Pharmaceuticals, Appeal from Order No. 275 of 1998 dated 11/06/1996
       1942 Appeal Cases page 130;; U.P. Cooperative Federation Ltd. vs. Sunder Bros, Delhi, AIR 1967 SC 249 = 1996 Supp SCR 215;; The Printers (Mysore) Pvt. Ltd. vs. Pothan Joseph, AIR 1960 SC 1156 = 1960 (3) SCR 713; Wander Ltd. vs. Antox India Pvt. Ltd., 1990 (Supp) SCC 727;; N.R. Dongre vs. Whirlpool Corp., 1996 PTC (16) 583;; Laxmikant V. Patel vs. Chetanbhai Shah, AIR 2002 SC 275;; Adani Export Ltd. vs. Marketing Service Incorporated & Ors., 2005 (8) GHJ 517.-Relied on

K. S. JHAVERI, J.

( 1 ) THIS appeal is directed against the judgment and order dated 11-2-2000 passed by the City Civil Judge, Ahmedabad, -below Exh. 5/6 in Notice of Motion in Civil Suit No. 1952 of 1999, whereby the defendants- appellants were restrained from manufacturing and marketing their products i. e. flour mills (Ghar Ghanti) by using the word NIMA till hearing and final disposal of the suit.

( 2 ) THE respondents-original plaintiffs filed Civil Suit No. 1952 of 1999 for a declaration and permanent injunction. The case of the respondents-original plaintiffs is as under :"the plaintiff No. 1 is a Company incorporated under the provisions of the Companies Act, 1956 and plaintiff No. 2 is a Trust registered under the provisions of the Trusts Act. Plaintiff No. 2 is the owner and proprietor of the trade mark NIRMA and the same trade mark has been assigned in favour of plaintiff No. 1 by way of assignment deed. The assignment deed is filed for registration under the provisions of the Trade Marks Act and plaintiff No. 1 is engaged in the business of manufacturing and marketing various consumer products in India and elsewhere. ""the plaintiffs predecessor-in-title started manufacturing and marketing detergent powder, detergent cake and other products in India and elsewhere. The word NIRMA has been coined and invented from the name of Nirupama, daughter of Smt. Shantaben K. Patel, a partner of the said partnership firm and as trade mark NIRMA has been registered. The same is continuously used in various packing materials for different products i. e. soap, detergent powder, detergent cake, cleaning preparations, etc. ""trade mark NIMA is also used and got registered under the Trade marks Act in respect of various classes i. e. like spices, match-box and other consumer items. Plaintiffs products are sold throughout India and the name nirma has acquired reputation and goodwill in the market. The plaintiffs have applied for registration of similar names NIRMAL, NIMA and also applied for exclusive right to use the same word. According to them, the plaintiffs have got some of the registration which includes registration of mark NIMA. The plaintiff No. 1 is registered at Registration No. 422839 in respect of the goods covered in Class-7, and therefore, the use of the same or any other identical or deceptively similar by any other person more particularly by the defendants amounts to infringement to the plaintiffs trade marks. Trade mark NIMA is also registered bearing Registration No. 396185/b of 1982. ""it is alleged that the appellants-defendants have adopted and started using the word NIMA for marketing their flour mills. Therefore, Notice was served on 22-9-1998 calling upon the defendants to stop using the trade mark NIMA. The defendants replied to the Notice on 7-10-1998. Again, another notice was served to which there was no reply. According to the plaintiffs, by using the word NIMA the defendants are creating confusion and deception in the mind of general public because the word NIMA is identical and deceptively similar to the plaintiff No. 1s very popular trade mark NIRMA. However, the defendants declined to stop using the word NIMA for their products. Under these circumstances, the plaintiffs preferred the aforesaid Civil Suit. In the suit proceedings, notice of motion was taken out at Exhs. 5/6. ""the trial Court after hearing the parties passed an order on 11-2-2000, whereby the plaintiffs-defendants were restrained by an order of temporary injunction from manufacturing and marketing their products i. e. flour mills (Ghar ghanti) by using the word NIMA till hearing and final disposal of the suit. " "it is against the aforesaid order the present appeal has been filed by the original defendants. "

( 3 ) MR. P. M. Thakkar learned Senior Counsel appearing with Mr. Premal s. Rachh and Mr. Y. M. Thakkar learned Advocates for the appellants has submitted that the appellants are using the mark NIMA since 12-2-1997 with respect to

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Judicial Analysis

SupremeToday

2005 Supreme(Guj) 351

Gujarat High CourtJudgename :K.S.JHAVERIBHAVNESH MOHANLAL AMIN - AppellantVersusNIRMA CHEMICAL WORKS LTD - RespondentAPPEAL FROM ORDER 90 of 2000Decided On : 05/09/2005

Cases Referred (3)

Judicial Analysis

Gujarat High Court
Judgename :K.S.JHAVERI
BHAVNESH MOHANLAL AMIN - Appellant
Versus
NIRMA CHEMICAL WORKS LTD - Respondent
APPEAL FROM ORDER 90 of 2000
Decided On : 05/09/2005