IA 16580/2014 in CS (OS) 2622/2014, IA Nos. 20893/2014 & 24158/2014 in CS (OS) 3242/2014. Case: Lalit Kumar Arya and Ors. Vs Prabhat Zarda Factory International (Noida) and Ors.. High Court of Delhi (India)

Case NumberIA 16580/2014 in CS (OS) 2622/2014, IA Nos. 20893/2014 & 24158/2014 in CS (OS) 3242/2014
CounselFor Appellant: Sushant Singh and Sandeep Sharma, Advs. and For Respondents: A.K. Trivedi, Avinash Trivedi and Ritika Trivedi, Advs.
JudgesJayant Nath, J.
IssueArbitration and Conciliation Act, 1996 - Section 9; Code of Civil Procedure, 1908 (CPC) - Order XXIII Rule 3; Order XXXIX Rule 4
Judgement DateNovember 02, 2015
CourtHigh Court of Delhi (India)

Judgment:

Jayant Nath, J.

IA No. 16580/2014 in CS (OS) 2622/2014 & IA Nos. 20893/2014 & 24158/2014 in CS (OS) 3242/2014

  1. These two suits are filed by the plaintiff seeking identical reliefs against the defendants pertaining to alleged infringement of rights of the plaintiff in the registered trademark RATNA and RATNACHHAP and numeral 300 and Prabhat Zafrani Patti as well as the colour scheme, lay out and other features. The plaintiff seeks permanent injunction to restrain the defendants from manufacturing, marketing and selling chewing tobacco/Zafrani Patti, Zarda, Quiwam under the said trademarks. Other connected reliefs are also sought.

  2. For the purpose of narration of facts I will deal with the facts of CS(OS) 2622/2014. In the present suit IA No. 16580/2014 is filed by the plaintiff seeking interim injunction against the defendant to restrain them from infringing the trademarks of the plaintiff. No ex parte injunction has been granted to the plaintiffs.

  3. The present two suits are essentially a family dispute. Plaintiff No. 1 in the present suit is the father while defendant is a firm of which one of the sons of plaintiff No. 1 is the partner. The brief facts as stated in the plaint are that it is averred that the business of the plaintiff under the said trademarks is substantial and subsisting since 1966 when the plaintiff adopted these trademarks in respect of tobacco including chewing tobacco and Zafrani Patti. The plaintiff entered into a licensing agreement on 1.10.2003 by which the defendant was permitted use of the trademark of the plaintiff in relation to chewing tobacco, pan masala and quiwam to be manufactured with the formula, specifications and expert know-how supplied by the plaintiff. The Agreement was for three years. It is averred that on account of violation and breaches done by the defendant the plaintiff terminated the agreement on 04.07.2005 and filed a suit CS(OS) 2113/2006 against Shri Jyoti Kumar Arya (partner of the defendant and son of plaintiff No. 1) calling upon the partners of defendant firm to stop using the trademark of the plaintiff. Plaintiff also filed a petition under section 9 of the Arbitration and Conciliation Act being OMP No. 239/2005. The matter was settled between the parties and a joint application under Order 23 Rule 3 CPC was filed whereby the plaintiff agreed to continue to renew the license relating to trademark etc. and entered into a fresh agreement dated 02.09.2008 with the defendant. The same agreement was entered into on 12.10.2011 whereby the defendant was further authorised to use the trademark etc. In July 2013 it is averred that the plaintiff was shocked to know that the defendant despite being a licensee of the trademarks of the plaintiff for last several years has dishonestly attempted to claim proprietary rights by filing suit being CS(OS) 1319/2013 seeking partition of the plaintiff's moveable and immoveable properties. He has also demanded partition and share in the trademark and other Intellectual Property Rights of the plaintiff herein claiming the assets of plaintiff No. 1 to be joint Hindu family business and plaintiff No. 1 as the Karta. Hence, it is averred that the plaintiff vide letter dated 5.10.2013 which was written to the defendant terminated the contract dated 12.10.2011. Despite receipt of the termination letter, the defendant has continued to use the Intellectual Property Rights which was subject matter of the present agreement dated 12.10.2011. Hence, the present suit has been filed seeking the stated reliefs.

  4. The defendant has filed a written statement. In the written statement it is averred that plaintiff No. 1 and defendant are family members and plaintiff No. 1 is the Karta of the joint hindu family business. (The defendant is the firm Prabhat Zarda Factory International (Noida) and is impleaded through its partners including the son of plaintiff Sh. Jyoti Kumar Arya. The term defendant is used in the pleadings to loosely refer to the firm or Sh. Jyoti Kumar Arya). It is averred that plaintiff No. 1 inherited the family business from his father late Chaturbhuj Ram who expired on 04.12.1958. Plaintiff No. 1 is stated to have three sons, namely, late Shri Pradeep Kumar Arya, Shri Jyoti Kumar...

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