JUDGMENT :

1. The present Appeal From Order under Order 43 Rule 1(r) of the Code of Civil Procedure, is preferred by the original plaintiffs, being aggrieved and dissatisfied by the order dated 06.12.2021 passed by the learned Chamber Judge, Court no.28, City Civil Court, Ahmedabad, below exhibit 6 and 7 whereby the application for interim injunction filed by the plaintiff appellant came to be rejected.

2. The appellants are the original plaintiffs whereas the respondents are original defendants before the Trial Court. For the brevity and convenience, the parties are referred to in this order as per the character assigned to them before the Trial Court i.e. plaintiff and defendant.

3. The brief facts giving rise to the present appeal are as under:-

3.1. That both the plaintiffs are engaged in the business of tea. The plaintiff no.1 is a registered proprietor and registered copyright holder of the labels in question and is in the business of tea since about 100 years. That the plaintiff no.2 is licensed user of plaintiff no.1 and plaintiff no.2 has authorized Mr. Ashvin Joshi (Full time Director of plaintiff no.2) to take legal action against the infringers.

3.2. That the plaintiff no.2 has a turnover of over Rs.1200 crores sale and huge advertisement expenses which establishes goodwill and reputation of the plaintiffs. That the trademark/ label/package “WAGH BAKRI” along with different and distinct colour, scheme, get up and arrangement is used, referred or shown or advertised, and thereby the traders, consumers and the general public identify, recognize and believe that it is coming from the source of the plaintiffs and none else.

3.3. The plaintiffs have also referred to various trademarks and also copyrighted and labels and has stated that the labels are protected under the Copyright Act 1957, throughout the lifetime of the author and then 60 years from the year in which the author died.

3.4. It is contended that the plaintiff is the first adopter, user and registered proprietor of the trademarks/ labels and copyright of thereof and hence, the plaintiff has exclusive right to use the same in view of the provisions of Section 28 of the Trade Marks Act, 1999. The defendant is not registered proprietor of the trademark/ label, nor is the copyright holder of the artistic work of the label in dispute. That the defendant is subsequent adoptor of the trademark/ label in question. As per the settled principles, only prior adoptor and user is entitled to use the trademark/ label.

3.5. That the defendant pilfered colour scheme, get up and arrangement of the registered labels of the plaintiffs for identical business after MOU being executed by the defendant for not using the identical and / or deceptively label to that of the plaintiffs for the identical product in the course of the trade.

3.6. It is contended that when the plaintiffs came to know about using the label (produced at Annexure D1) by the defendant, the plaintiff issued a first legal notice dated 10.07.2020 for infringement of trademarks, copyright and passing off action. That thereafter, the defendant has in his letter dated 21.07.2020 stated that he had started selling the product under the old label only after 01.06.2020 and thereby they had undertaken to cease and desist from using the said label.

3.7. That after aforesiad letter the defendant has executed MOU with the plaintiffs wherein the defendant has admitted and accepted the exclusive statutory rights of the plaintiffs in respect of trademarks/labels and has also undertaken that he shall not use identical and/or deceptively label to that of the plaintiffs.

3.8. That after the MOU, the defendant has applied for registration of new label (disputed label at annexure-D) which is also identical and/or deceptively similar to that of the plaintiffs' suit labels. Therefore, the plaintiffs have issued another legal notice to the defendant. That the defendant has replied the said legal notice and filed caveat before the Trial Court.