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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SETHURAMAN & THE HONOURABLE MR. JUSTICE NATARAJAN
S.P.S. Selvaraj - Appellant
Versus
V. Muthusamy Naicker - Respondent
Case No : Contempt Application 4 of 1980
Decided On : 16 July 1980
CONTEMPT OF COURT - WILLFUL DISOBEDIENCE OF DECREE - TRADE MARK INFRINGEMENT - DECEPTIVELY SIMILAR MARK - PUNISHMENT - FINE OR IMPRISONMENT - SECTION 10 OF THE CONTEMPT OF COURTS ACT, 1971.
Fact of the Case:
The petitioner, a manufacturer of tooth powder under the registered trade mark "Gopal Tooth Powder", filed a petition under section 10 of the Contempt of Courts Act, 1971, against the respondent for willfully disobeying an injunction order restraining him from using a deceptively similar mark "Lion Brand Tooth Powder". The respondent had a history of infringing the petitioner's trade mark and had been convicted and subjected to various legal proceedings in the past.
Finding of the Court:
The court found that the respondent had willfully disobeyed the injunction order by continuing to use a deceptively similar mark, despite submitting to a decree in the District Court. The court rejected the respondent's contention that there was no infringement or violation of the decree and held that the respondent's modus operandi was to change the name every time proceedings were taken but continue to use a deceptively similar mark.
Issues: 1. Whether the respondent willfully disobeyed the injunction order restraining him from using a deceptively similar mark? 2. Whether the respondent's actions constituted contempt of court? 3. Whether the petitioner could execute his decree instead of resorting to contempt proceedings?
Ratio Decidendi: 1. The court held that the respondent's actions constituted willful disobedience of the injunction order as he continued to use a deceptively similar mark despite submitting to a decree in the District Court. 2. The court found that the respondent's actions amounted to contempt of court as they substantially interfered with the due course of justice and undermined the authority of the court. 3. The court rejected the respondent's contention that the petitioner could execute his decree instead of resorting to contempt proceedings, stating that contempt proceedings were necessary to vindicate the dignity of the court and not merely to satisfy the grudge of a private individual.
Final Decision: The court imposed a fine of Rs. 100/- on the respondent, or in default, simple imprisonment for a period of two weeks in civil prison. The court took a lenient view considering the respondent's lack of remorse and the fact that he had not expressed any penance during the proceedings.
This appeal coming on for hearing on this day the court delivered the following order:-
2. This is a petition under section 10 of the Contempt of Courts Act, 1971 (Act No. 70 of 1971) filed by one S.P.S Selvaraj who will be herein after referred to as the petitioner, against V. Muthuswamy Naicker: the respondent. The petitioner is a partner of a firm known as M/s S.P.S Jayam & Co. which manufactures tooth powder, which is marketed under the name and style of "Gopal Tooth Powder". It has a registered trade mark, the mark having been registered on 30th April 1947 in class 3 as Mark No. 129120 in relation to the tooth powder under the law then in force viz., the Trade Marks Act, 1940. It has been renewed subsequently under the Trade and Merchandise Marks Act, 1958. It is claimed that the firms annual turnover is in the reign of Rs. 50.000 and it spends on advertisement through various media a sum of Rs. 4, 00, 000. A packet of tooth powder manufactured by the firm is said to cost about 35 paise.
3. The respondent was found to be marketing tooth powder in similar packets under the name and style of Ram Gopal Tooth Powder. A complaint was lodged before the Police and the respondent was prosecuted in C.C. No. 126 of 1971 before the Additional First Class Magistrate No. II Madurai. He was found guilty under sections 482, 483, 485, 487 and 488 of the Indian Penal Code read with the sections 78 and 79 of the Trade and Merchandise Marks Act, 1958, He was sentenced to undergo three months simple imprisonment. There was an appeal to the Sessions Court, Madurai, which was dismissed on 26th February 1972.
4. Subsequently the respondent continued to trade in tooth powder in packets similar to those of the petitioner. The petitioner filed O.S.No. of 1978 in the Court of the District Judge, Madurai in accordance with the provisions of sections 105 and 106 of the Trade and Merchandise Marks Act 1958. There was a prayer for permanent injunction and other relief's. The respondent submitted to decree on 16th November, 1976.
5. During the tendency of the aforesaid suit the respondent was found again to be selling tooth powder in packets similar to those of the petitioner and a notice was issued by the petitioner through his counsel on 28th November, 1973 to the respondent threatening further proceedings. It is stated that the activities of the respondent has subsided for sometime, but again in the middle of 1976 there was a resumption of the trade in the name and style of lion brand tooth powder. There was a change in the manufacturing address which was originally in the name and style of Sri Murugan Chemicals, and which was changed to N.S.M. & Sons. Sri Prakash Cottage Industry, Madurai. O.S. No. 17 of 1976 was filed by the petitioner in accordance with the provisions of sections 105 and 106 of the act and on 28th October 1976, the defendant appeared in person and submitted to a decree as prayed for. Consequently, there was and injunction restraining the respondent from using his label lion brand tooth powder. It is alleged that as the malpractice continued, the petitioner has comeforward with the present petition under section 10 of the Contempt of Courts Act, 1971 for committing him for contempt consequent on the willful violation and disobedience of the order of injunction passed in O.S. No. 17 of 1976 on 28th October, 1976.
6. The respondent filed a counter denying the allegations made in the affidavit in support of the petition under section 10 of the Act.
7. During the course of the hearing the petitioner marked Exs. P. 1 to P. 6 Exs. P. 1 and P-2 are the bills said to have been issued by the respondent. Ex. P. 3 is one packet of lion brand tooth powder for which Ex. P. 4 bill was issued on the 6th March 1980. E. P. 6 is a bundle of 10 packets of lion brand tooth powder said to have been sold by the respondent. The petitioner's Manager one Mr. P. James was examined as P.W. 1. He stated that he went with one Chandran and purchased 60 pa
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