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IN THE HIGH COURT OF MADRAS
R. Mala, J.
A. Habeebur Raliman Sons, S. Beedi Factory - Appellant
Versus
Rajender Trading as Rajendar and Sons - Respondent
A. No. 2853 of 2008 and O.A. No. 1095 of 2007 in C.S. No. 845 of 2007
Decided On : 16-04-2010
TRADE MARK - Passing off - Sections 2(1)(zb), 27, 28, 31 of the Trade Marks Act, 1999 - The court considered the arguments of the Plaintiff and the Defendant regarding the similarity of their trade marks and the registration of the Defendant's trade mark. The Defendant's trade mark was found to be phonetically different from the Plaintiff's trade mark. The court also noted the Defendant's business activities from 2001 and the delay in the Plaintiff's filing of the suit in 2007. The court held that the Plaintiff was not entitled to an interim injunction for passing off the trade mark/copyright in question.
Fact of the Case:
The Plaintiff filed a suit for permanent injunction restraining the Defendant from infringing the Plaintiff's registered trade mark and copyrighted artistic work. The Plaintiff also filed an application for interim injunction, which was granted. The Defendant filed an application for vacating the interim order of injunction, citing various grounds including the phonetic and structural differences between the trade marks, territorial jurisdiction, and delay in filing the suit.
Finding of the Court:
The court found that the Defendant's trade mark was phonetically different from the Plaintiff's trade mark and noted the Defendant's business activities from 2001. The court held that the Plaintiff was not entitled to an interim injunction for passing off the trade mark/copyright in question.
Issues: The issues included the similarity of the trade marks, territorial jurisdiction, delay in filing the suit, and the Defendant's business activities.
Ratio Decidendi: The court considered the phonetic and structural differences between the trade marks, the Defendant's business activities from 2001, and the delay in the Plaintiff's filing of the suit in 2007. The court held that the Plaintiff was not entitled to an interim injunction for passing off the trade mark/copyright in question.
Final Decision: The vacate-injunction application was allowed and the interim order of injunction was vacated. The injunction application was dismissed.
JUDGMENT :
R. Mala, J.
For the purpose of convenience, the parties are referred to as they are ranked in the suit.
2. The Plaintiff filed the suit in C.S. No. 845 of 2007 for the following reliefs:
(b) for permanent injunction restraining the Defendant, by himself, his servants or agents or any one claiming through him, from in any manner infringing the Plaintiffs registered copyright over the artistic work "S. BEEDI/S. MARK JADI BEEDIES" together with the letter "S" written in an artistic manner by using the offending artistic work "SRI RAGHAVENDRA SWAMY BEEDIES/R.S. BEEDIES" together with the letter "S" written in an identical artistic work or any other work or works which are in any way identical to the Plaintiff's copyrighted artistic work "S. BEEDI/S. MARK JADI BEEDIES" together with the letter "S" written in an artistic manner.
(c) for permanent injunction restraining the Defendant, by himself, his servants or agents or any one claiming through him from in any manner passing off his "beedies" bearing the offending trade mark and artistic work "SRI RAGHAVENDRA SWAMY BEEDIES/R.S. BEEDIES" together with letter "S" written in an identical artistic manner as and for the celebrated "Beedies" of the Plaintiff's, sold under the registered trade mark and copyrighted artistic work "S. BEEDI/S. MARK JADI BEEDIES" together with letter "S" written in an artistic manner either by selling or offering for sale or in any manner advertising the same.
(d) to direct the Defendant to render a true and faithful account of the profits earned by them through the sale of their "Beedies" bearing the offending artistic work and the trade mark "SRI RAGHAVENDRA SWAMY BEEDIES/R.S. BEEDIES", together with the letter "S" written in identical artistic manner and direct payment of such profits to the Plaintiff for passing off committed by the Defendant.
(e) to direct the Defendant to surrender to the Plaintiff the entire stock of unused jewel boxes, bill books, labels etc. bearing the offending artistic work and the trade mark labels together with the blocks and dyes for destruction.
(f) to direct the Defendant to pay to the Plaintiff the costs of the suit.
3. Pending disposal of the suit, the Plaintiff filed Original Application No. 1095 of 2007 in C.S. No. 845 of 2007, seeking for ad-interim injunction restraining the Defendant, by himself, his servants or agents or any one claiming through him from in any manner passing off his "Beedies" bearing the offending trade mark and artistic work "SRI RAGHAVENDRA SWAMY BEEDIES/R.S. BEEDIES" together with the letter "S" written in an identical artistic manner as and for the celebrated "Beedies" of the Plaintiff, sold under the registered trade mark and copyrighted artistic work "S. BEEDI/S. MARK JADI BEEDIES" together with the letter "S" written in an artistic manner, either by selling or offering for sale or in any manner advertising the same.
4. This Court, after considering the arguments of the counsel for the Plaintiff, on 24.9.2007, while ordering notice, granted an order of interim injunction, which was subsequently extended until further orders.
5. The Defendant has come forward with Application No. 2853 of 2008 in C.S. No. 845 of 2007, for vacating the interim order of injunction. The averments in the said vacate-injunction application, are as follows :
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