Joint owner of trade mark has no right to exploit the mark for his/her own benefit.

N.V.Balasubramanian, J.

The above O.S.A. Nos.30 to 37 of 2003 are preferred against a common order passed in O.A.Nos.730 to 733 of 2002 in C.S.No.727 of 2002 and O.A.Nos.444 to 447 of 2002 in C.S.No.455 of 2002 on the file of this Court. There are two suits filed one by the appellant herein in C.S.No.727 of 2002, and another by the respondents herein in C.S.No.455 of 2002. Both the parties sought for interim injunction in their pending suits restraining the other party from infringing trademark ROJA or RAJA, from infringing copyright which the respective parties have in the artistic work contained in their registered copyright, from manufacturing, marketing, selling or advertising or packing in respect of betel nut/supari or any kind or its allied products in the course of business using the trademark ROJA or ROSE or using the trading style with the initial N.V.K.M. or claiming the source or origin of business and against the passing off action.

2. All the eight petitions were considered together by a learned Single Judge of this Court and the learned Single Judge, by common order passed on 31.12.2002, held that the respondents herein have established prima facie case and the balance of convenience lies also in favour of the respondents herein. Learned Judge also held that the parties are joint proprietors of the registered trademarks and they are entitled to use the trademarks, ROJA and RAJA for the purpose of manufacturing and selling the scented betel nuts and no individual joint proprietor has any right to use the registered trademarks. Learned Judge further held that if anyone of the joint proprietors is not willing to join the majority of the joint proprietors, then it will be open to the majority of the joint proprietors to make use of the registered trademarks and the trading style and they should render a true and proper account once in a month to the other joint proprietor who is unwilling to join the trade. Learned Judge held that that this arrangement should continue in force till the disposal of rectification applications filed on either side. It is against this common order, the present appeals have been preferred.

3. A Bench of this Court admitted the appeals and ordered status quo on 31.1.2003. The appellant is the defendant in the suit, C.S.No.455 of 2002 (hereinafter referred to as the appellant, Zeenath Bivi) and the respondents in the appeal are plaintiffs in C.S.No.455 of 2002 (referred to hereinafter as the respondents/plaintiffs).

4. It is a dispute arising between the members of a family as to who is entitled to use the trademarks ROJA or RAJA in the manufacture of betel nut/supari. The brief facts necessary for the consideration of the appeals are that somewhere in 1942, one N.V.K.Mohamed Sultan Rowther started a proprietary concern in the name and style, N.V.K.Mohamed Sultan Rowther and Sons for the manufacture of scented betel nuts using the trademarks, ROJA, RAJA and KERA. On 22.1.1946 N.V.K.Mohamed Sultan Rowther obtained the registration of the trademark ROJA and he was using the trademark ROJA in the manufacture and marketing of the scented betel nuts. N.V.K. Mohamed Sultan Rowther started his business in Dindigul, a town in the State of Tamil Nadu and slowly the business developed. He formed a partnership firm on 1.4.1966 by making his sons and daughters and also his brother-in-law as partners of the firm. At the time of formation of the partnership firm, the appellant Zeenath Bivi was a minor and she was admitted to the benefit of the partnership and her interest was taken care of by the second plaintiff in C.S.No.455 of 2002. On 18.7.1966 N.V.K.Mohamed Sultan Rowther and his sons and daughters applied to the Trademark Registry for recording the names of sons and daughters as subsequent proprietors by virtue of the deed of partnership dated 1.4.1966 and on 30.7.1966 the sons and the daughters of Mohamed Sultan Rowther were brought on record as subsequent proprietors of the trademark.