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1986 DIGILAW 239 (DEL)

HARKARAN DASS DIP CHAND v. ACTION DETERGENTS

1986-05-30

SUNANDA BHANDARE

body1986
Sunanda Bhandare ( 1 ) THIS application under Order 39 Rule 4 is filed by the defendant for vaction of the order of injunction granted by this Court on 14th May, 1986 whereby the defendants were restrained from using the trade mark KRANTI in respect of washing soap. ( 2 ) THE plaintiff is a partnership firm registered under the Partnership Act, 1932 and claim to be using the trade mark KRANTI since the year 1977. The trade mark KRANTI of the plaintiff is stated to be duly registered under the provisions of the Trade and Merchandise Marks Act, 1958 (for short the Act ), the registration numbers of which are given in the plaint. The plaintiff is also stated to be a registered proprietor of artistic logo KRANTI under the Copyrights Act, 1957. The plaintiff markets its washing soap under the trade mark KRANTI. ( 3 ) IT is the case of the plaintiff that the defendant has infringed the registered trade mark of the plaintiff though the plaintiff is entitled to exclusive use of the trade mark KRANTI. It is contented that the plaintiff is the prior user of the trade mark and has been advertising the said mark right from the year 1978. To support this contention learned counsel for the plaintiff referred to various documents filed along with the plaint. It is, therefore, submitted that the plaintiff is entitled to protection both under the Trade and Merchandise Act, 1958 and the Copyrights Act, 1957. It is further submitted that the defendant is using four trade marks namely. Action, Kranti, Blue Hourse and Chabi and, therefore, no hardship would be caused to the defendant if an interim injunction is granted against the defendant restraining the use of the trade mark KRANTI. ( 4 ) THE defendant admits the use of trade mark KRANIT however, contends that though the plaintiff has obtained ragistration for the trade mark KRANTI in respect of washing soap, the area of registration is restricted only to Uttar Pradesh. The soap manufactured and marketed by the defendant is sold only in Jammu and Kashmir and therefore, there is no infringement of the trade mark of the plaintiff. It is not disputed by the defendant that the plaintiff is the prior user of that the plaintiff holds a registration under the Act. The soap manufactured and marketed by the defendant is sold only in Jammu and Kashmir and therefore, there is no infringement of the trade mark of the plaintiff. It is not disputed by the defendant that the plaintiff is the prior user of that the plaintiff holds a registration under the Act. It is, however, submitted that the registration of the plaintiff is under Part b and, therefore, the plaintiff cannot get the protection under Section 27 of the Trade and Merchandise Act. It is further submitted that the artistic logo KRANTI does not have any distinctiveness and, therefore, registration under the Copyrights Act is of no consequence and the plaintiffs have brought in the question of registration under the Copyrights Act only for invoking the jurisdiction of this Court. ( 5 ) I have heard the arguments of both the parties and with their help perused the record. ( 6 ) THE plaintiff has placed on record two certificate of registration, One is dated 30-10-85 and the other is dated 27-9-85. The certificate dated 30-10-85 is registered in part a and the area is restricted to U. P. and Union Territory of Delhi. This registration is valid for 7 years 28-3-1981. The other certificate dated 27-9-83 is registered in part b and is valid for 7 years from 30-12-84. This certificate, however, does not indicate the area. To my mind it is not material for the present whether the registration is in part a or part b . Since the plaintiff admittedly holds a registered trade mark which is valid and current and is also admittedly the prior user, its rights are to be protected during the pendency of these proceedings. The balance of convenience is also in favour of the plaintiff and not in favour of the defendant because the defendant is marketing its product not only with the trade mark KRANTI but admittedly also in three other names. Since the plaintiff has made out a prima facie it is entitled to the grant of an interim injunction. The application is, therefore dismissed. There will be no order as to costs. ( 7 ) IN view of the order passed in I. A. 3459/86, the order dated 14th May, 1986 is confirmed. Since the plaintiff has made out a prima facie it is entitled to the grant of an interim injunction. The application is, therefore dismissed. There will be no order as to costs. ( 7 ) IN view of the order passed in I. A. 3459/86, the order dated 14th May, 1986 is confirmed. The defendant, its servants, agents, dealers, representatives and all other persons on its behalf are, during the pendency of the suit, retrained by an order of injunction from manufacturing, selling, offering for sale or otherwise dealing in washing soap under the trade mark KRANTI. Injunction confirmed.