Balance of convenience in favour of owner of the trade mark.

COMMON JUDGEMENT

P. SATHASIVAM,J

Since all these appeals are filed against the common order of the learned Additional District Judge cum Chief Judicial Magistrate, Coimbatore, they are being disposed of by the following common Judgment.

2. All these appeals arise out of a common order in I.A.Nos.23 to 25 of 1999 in O.S.No.2 of 1999 on the file of I Additional District Judge, Coimbatore. By the impugned common order dated 17.03.1999, the learned Additional District Judge had granted interim injunction restraining the defendants from interfering with the exclusive rights of the petitioner in I.A.No.23 of 1999, restraining the defendants 2 to 6 from passing off their goods bearing the trade mark SUN-ARC in I.A.No.24 of 1999 and restraining the defendants from making any transfers or assignments or encumbrance in respect of the trade mark SUNARC or emblem in I.A.No.25 of 1999. The learned Additional District Judge has granted these interim orders until the disposal of the suit or the expiry of the agreement dated 27.01.1996, whichever is earlier. The learned Judge has not granted interim injunction against defendants 5 and 6. The appeals, namely, CMA.Nos.593 to 595 of 1999 are filed by Wonderweld Electrodes Private Limited - 4th defendant in the suit. CMAs.596 to 598 of 1999 are the appeals filed by defendants 1 and 2 and others. CMAs.681 to 683 of 1999 are filed by the plaintiff in O.S.No.2 of 1999 against the limitation of time fixed in the order passed by the learned District Judge and also for an injunction against defendants 5 and 6.

3. Though we are asked to consider the order of injunction granted by the learned Additional District Judge, in view of elaborate arguments made by the learned counsel, let us briefly state the case of the plaintiff and defendants as pleaded. For convenience, we shall refer the parties as arrayed in suit.

4. According to the plaintiff, it is a Public Limited Company incorporated in 1964 and it is engaged in the manufacture and supply of various types of welding electrodes. The first defendant till 1988 was a Partnership Firm and became a Private Company incorporated under the Companies Act in 1988. The first defendant also engaged in the production and supply of various types of electrodes and is the registered owner of the trade mark SUN-ARC as well as logo. The plaintiff entered into an agreement with the first defendant for the use of Trade name and Trade Mark from 1972 onwards. As per the agreement dated 01.01.1986, the plaintiff was conferred with the right to sell their products under the name SUN-ARC. This agreement was for a period of five years commencing from 01.04.1985 to 31.03.1990. Even before this agreement was entered into, the plaintiff and the then Partnership Firm Welding Rods Manufacturing Company were working together. On 16.02.1989, another agreement was entered into between the plaintiff and the first defendant. At that time, the first defendant became a Private Limited Company. Subsequently, another agreement dated 01.04.1990 was entered into between the plaintiff and the first defendant for a period of five years. As per Clause 3 (d) of the agreement, the plaintiff was given the right to use their trade name SUN-ARC. Thus, the plaintiff got the right to use the said trade name and emblem in their advertisements, letter heads, pamphlets, technical literature, hoarding etc., for their products. In order to protect their interest, a comprehensive agreement dated 27.01.1996 was entered into between the plaintiff and the first defendant and as per the said agreement the trade name SUN-ARC is the property of the first defendant and it belongs to them. It has also been mentioned in the agreement that the plaintiff has been using the said brand name and trade mark all along. The first defendant has also agreed not to sell their products in the areas of Tamil Nadu, Pondicherry, Goa, Kerala Karnataka, Andhra Pradesh, Orissa, West Bengal and Maharastra (except the Districts of