First Appeal From Order No. 3377 of 2008. Case: Pradeep Jain and Anr. Vs Shri Swadesh Kumar Jain and Ors.. High Court of Allahabad (India)
| Case Number | First Appeal From Order No. 3377 of 2008 |
| Judges | Prakash Krishna, J. |
| Issue | Trade Mark and Merchandise Act, 1958; Civil Procedure Code (CPC) - Order 43, Rule 1 - Order 41, Rule 27 - Order 39, Rule 1; Uttar Pradesh Food Adulteration Rules, 1976 |
| Judgement Date | April 29, 2011 |
| Court | High Court of Allahabad (India) |
Judgment:
Prakash Krishna, J.
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The above appeal filed under Order 43, Rule 1(r) of the Code of Civil Procedure by the Defendants arises out of Original Suit No. 6 of 2008 and is directed against the order dated 1.11.2008 passed by the District Judge, Ghaziabad whereby he has allowed the application 6-C for temporary injunction restraining the Defendants-Appellants herein from passing off the Shikanji Powder, Shikanji Drink etc. under the trade mark of the Plaintiffs namely 'Jain Shikanji' or 'Jain Shikanji Masala'.
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The Defendants have further been restrained from using, advertising, licensing directly or indirectly any trade name or the trade mark which the Plaintiffs are using or which is deceptively/confusing similar or identical to 'Jain Shikanji', 'Jain Shikanji Masala' and 'Jain Shikanji Restaurant' etc. till the pendency of the suit.
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The background facts may be noted in brief;
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The Plaintiffs and the Defendants belonged to same family. Original Suit No. 6 of 2008 has been filed by the Respondents herein on the allegations that their father Parmatma Sharan Jain was carrying on the business of selling 'Jain Shikanji' and 'Shikanji Powder' more than three decades under the name and style of "Jain Shikanji" near Police Station Modi Nagar District Ghaziabad. The compound of 'Shikanji' was formulated by him (father of the Plaintiffs) and with the passage of time it became very popular and acquired a brand name and shikanji drink sold under the trade name of 'Jain Shikanji' gained immense popularity and good will. The said Trade Mark became distinctive of Shri Parmatma Sharan Jain and his sons (Plaintiffs). Shri Parmatma Sharan Jain expired in the year 1991 and the business was inherited by his five sons, the Plaintiffs who are continuing to do the said business. The Defendants Shri Pradeep Jain, his wife Smt. Beena Jain are the first cousin, and wife of cousin of the Plaintiffs. Pradeep Jain was never associated with the Plaintiffs or with their shikanji business. Recently they have opened 'Jain Shikanji Restaurant' at Keshav Garden, Kadrabad, Modinagar at a distance of approximately 500 meters from the Plaintiffs' shop and have started selling Shikanji under the trade name of 'Jain Shikanji' unauthorisedly. Thus, they are infringing and passing off the trade mark of the Plaintiffs and thus causing irreparable loss and injury to them.
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It was further stated that the Plaintiffs are also the registered proprietors of trade mark 'Jain Shikanji' in India since the year 1998, registered in class 16, being registration No. 820925.
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Along with the plaint, an application on similar allegations for grant of temporary injunction restraining the Defendants from selling 'Jain Shikanji' or using 'Jain Shikanji' on the products sold by them was filed.
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In reply, it was stated that Late Banarsi Das Jain was the grand father of the Plaintiffs and the Defendant No. 1, who started the business of Shikanji, used the name 'Jain' in the year 1937. He carried on the said business along with his sons namely Parmatma Sharan Jain (father of the Plaintiffs) Amar Nath Jain, (the father of the Defendant No. 1). On 15.4.1999, a notice was given by the Plaintiffs complaining that Defendants have no right to do the business in the name of 'Jain Shikanji', which on 21.4.1999, was replied, refuting the Plaintiffs' claim. Thereafter no action was taken on the said notice by the Plaintiffs. With the passage of time, the Defendants' business flourished and they opened a Branch at Modinagar in the year 2008 which became an eyesore for the Plaintiffs. The Plaintiffs and the Defendants both have applied for registration before the authority concerned of trade mark 'Jain Shikanji' which is pending consideration. The Defendants application for registration is earlier in point of time.
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It was further pleaded that the Defendants are carrying on the business since the year 1999 openly, continuously with full knowledge of the Plaintiffs and as such no case for grant of any temporary injunction order has been made out.
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The trial Court/the District Judge considered the respective submissions of the Counsel for the parties and held that the trade mark 'Jain Shikanji' is registered since 1998 in class 16. The said class relates to registration of trade mark for letter pad, fax, visiting cards holdings and other stationary goods. In other words the said trade mark registered under the Trade Marks Act does not relate to cold drink i.e the product known as 'Jain Shikanji'. It was further found that the Plaintiffs are carrying on the business for a considerable period of time and their products have acquired a reputation and they have prima facie case, balance of convenience and would suffer irreparable loss and injury if the injunction prayed for is not granted to them. The order therefore, under appeal granting temporary injunction was passed on the ground of passing off.
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Heard Shri M.K. Gupta, learned Counsel for the Appellants and Shri Ravi Kant learned senior Counsel for the Respondents.
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The learned Counsel for the Appellants submits that indisputably, a notice dated 15.4.1999 objecting the action of the Defendants of selling the soft drinks under the name and style of 'Jain Shikanji' was given by the Plaintiffs. In the said notice, it was set out that the notice giver is the owner of registered Trade Mark No. 820925 of selling 'Jain Shikanji', Modi Nagar. Noticee was asked not to use the said Trade Mark. No action was taken on the basis of the said notice. The present suit was filed after lapse of considerable period of time in the year 2008 therefore, on the ground of delay, the Plaintiffs' are not entitled to get any temporary injunction order. Even otherwise also on merits, the Plaintiffs have failed to prove and establish the three ingredients namely prima facie case, balance of convenience and irreparable loss which are essential for the grant of temporary injunction. Late Banarsi Das Jain, the grand father of the parties had started the business along with his sons and the said business being ancestral business, the Defendants are very much entitled to sell the product in the name and style of 'Jain Shikanji'. The registration No. 820925 under the Trade Marks Act is not in respect of the drink, 'Jain Shikanji' therefore, is of no avail to the Plaintiffs, submits the learned Counsel for the Appellants.
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In reply, the learned Counsel for the Respondents submits that there is no iota of evidence on record to show that Late Banarsi Das Jain, the grand father of the parties started the said business in his life time. On their own showing, the Defendants have started the business in the year 1998 at Ghaziabad. Thereafter, the Defendant No. 1 in the year 2008 opened a shop at Modinagar, at a short distance of Plaintiff's shop. The Plaintiffs have acquired a goodwill and the Defendants are using deceptive similar trade marks. The Plaintiffs have gained the immense popularity and acquired a goodwill with regard to product known as 'Jain Shikanji' and the Defendants by supplying the product as 'Jain Shikanji' are illegally trying to reap up the good will of the Plaintiffs with the intention of confusing the customers. Alternatively, the findings recorded by the Trial Judge are based on appreciation of evidence and as such, unless any perversity is shown therein, the appellate Court should slow in interfering with such matter.
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Considered the respective submissions of the Counsel for the parties.
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Broadly, the following two questions fall for determination in the appeal:
i) Whether the Court below was justified in granting temporary injunction order in favour of the Plaintiffs.
ii) Whether the delay in filling the suit would dis entitle, the Plaintiffs to get the temporary injunction order.
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Taking the first point first, it is desirable at this stage to notice the pleadings of the parties in this regard in brief:
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The Plaintiffs came out with the case that there father Late Parmatma Sharan Jain was carrying on the business of manufacturing and selling...
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