SHIV MOHAN BAND v. SURESH KUMAR — 1995 DIGILAW 694 (DEL)

K. RAMAMOORTHY ( 1 ) THE Plaintiff has filed the application for injunction. The case of the plaintiff that it is a partnership firm consisting of Shiv Kumar and Shri Mohan Lal the brothers. The defendant also is the brother of the partners of the plaintiff. Since 1963 the plaintiff has been carrying on the business under the name and style of Shiv Mohan,band. In para 4 of the plaint it is stated The plaintiff is the registered owner of the Copy-right bearing the title "shiv Mohan Band" claiming user since 1963 under No. A-2255/66 dated 30-12-1966 and also obtained registration of various types of Trolleys under the Copyright Act under No. A-30384/80. A-28425/80 and A-28194/80 and the said registrations are valid and subsisting with plaintiffs. The plaintiff is also registered with the income tax department". ( 2 ) IN para 6 the turnover of the business from 1966-67 to 1993-94 is given. In para 7, it is stated that caution notices were issued by the plaintiff against the user of the trade name "shiv Mohan Band . In para 8 of the plaint it is stated that: "the plaintiff came across an advertisement of the defendant published in the Sandhya Times dated 7th April, 1995 under the heading "shiv Mohan Band . ( 3 ) IN this plaint it is stated that the plaintiff- came to know about the user of the name by the defendant only in April 1995, The plaintiff complaints that the defendant committing an act of passing off and the defendant is infringing the rights of the plaintiff in Copy-right in their artistic work. ( 4 ) ON 16. 081995 the defendant filed the written statement. ( 5 ) THE case of the defendant is that the plaintiff has concealed the material facts. The father of the plaintiff and the defendant started the business in playing band at the time of marriages and also in other festivals. The father Jeevat Ram M. Kripalani Started the business in 1963. There are five sons. The eldest two brothers Shiv Kumar and Mohan Lal are carrying on business of playing band etc. under the name and style of "shiv Mohan Band" at Karol Bagh. New Delhi. The other brother Raj Kumar, is doing the business under the same name at Lajpat Rai Market. There are five sons. The eldest two brothers Shiv Kumar and Mohan Lal are carrying on business of playing band etc. under the name and style of "shiv Mohan Band" at Karol Bagh. New Delhi. The other brother Raj Kumar, is doing the business under the same name at Lajpat Rai Market. Delhi, from 1967 and the defendant Suresh Kumar is also earn ing on the same business under the same name at Kotla Mubarakpur, New Delhi, from 1977. and he is carrying on the business at Shiv Mandir Market Chattarpur. New Delhi also. The defendant built the reputation and the name Shiv Mohan band is being used at three different places of Delhi and the advertisements are being made by all the three brothers. In all majors functions like Ramlila, Dussehra and other festivals of the three bands belonging to the plaintiff and defendant and Shri Raj Kumar are simultaneously displayed to the knowledge of all the parties. The defendant has also produced the Telephone Directory issued by MNTL. At page 1493 there is an advertisement at the foot of the page by the defendant and the following names are found in that page: Shiv Mohan Ban A-765, Kotla Mubarakpur, Gurdwara Road, New Delhi - 110003 Phone 622251 ( 6 ) THE defendant has also filed reply to the petition. The plaintiff has filed replication to the written statement and also rejoinder to the reply by the defendant. The allegations are repeated and I do not want to again advert to the allegations in the petition the injunction reply and rejoinder. ( 7 ) THE defendant has filed the documents pages 1 to 78 apart from the Telephone Directory. Those documents will clearly show that the defendant has been carry ing on business for more than 18 years to the knowledge of the plaintiffs and also the other brother Raj Kumar. In (1987) 36 Ch D 740 Cotton L. J in Pro for Vs. Bannis observed with reference to the principle of acquiescence "it is necessary that the person who alleges this lying by should have been acting in ignorance of the title of the other man, and that the other man should have known that ignorance and not mentioned his own title". Bannis observed with reference to the principle of acquiescence "it is necessary that the person who alleges this lying by should have been acting in ignorance of the title of the other man, and that the other man should have known that ignorance and not mentioned his own title". ( 8 ) IN the same case Bowen L. J said: "in order to make out such acquiescence it is necessary to establish that the plaintiff stood by and knowingly allowed the defendants to proceed and to expend money in ignorance of the fact that he had rights and means to assert such rights". ( 9 ) IN Messr. Devidoss and Co. page 75 AIR 1941 Madras page 31 the law was noticed in the following terms: to support a plea of acquiescence in a trade-mark case it must be shown that the plaintiff has stood by for a substantial period and thus encouraged the defendant to expend money in building up a business associated with the mark in (1986 13 RP C 464 Rowland, Vs. Michell, Romer J observed: "if the plaintiff really does stand by and allow a man to carry on business in the manner complained of to acquire a reputation and to expend money he cannot then after a long lapse of time, turn round and say that the business ought to be stopped". ( 10 ) IN Codes Vs. Addis and son (1923) 40 RPC 130 Eve J said: "for the purpose of determining this issue I must assume that the plaintiffs are traders who have started in this more or less small way in this country, and have been continuously carrying on this business. But I must assume also that they have not during that period, been adopting a sort of Rip Van Winkle policy of going to sleep and not watching what their rivals and competitors in the same line of business were doing. I accept the evidence of any gentleman who comes into the box and gives his evidence in a way which satisfies me that he is speaking the truth when he says that he individually did not know of the existence of a particular element or a particular factor in the goods marketed by his opponents. I accept the evidence of any gentleman who comes into the box and gives his evidence in a way which satisfies me that he is speaking the truth when he says that he individually did not know of the existence of a particular element or a particular factor in the goods marketed by his opponents. But the question is a wider question than that: ought not he to have known: is he entitled to shut his eyes to everything that is going on around him, and then when his rivals have perhaps built a very important trade by the user of indicia which he might have prevented their using had he moved in time, come to the Court and say: now stop them from doing it further, because a moment of time has arrived when I have awakened to the fact that this is calculated to infringe my fights. Certainly not. He is bound, like everybody else who wishes to stop that which he says is an invasion of his rights, to adopt a position of aggression at once, and insist, as soon as the matter is brought to Court, it ought to have come to his attention, to take steps to prevent its continuance; it would be an insufferable injustice were the Court to allow a man to lie by while his competitors are building up an important industry and then to come forward, so soon as the importance ofthe industry has been brought home to his mind, and endeavour to take from them that of which they had legitimately made use: every day when they used it satisfying themmore and more that there w as no one who either could or would complain of their so doing. The position might be altogether altered had the user of the factor or the element in question been of a secretive or surreptitious nature: but when a man is openly using. as part of his business, name and phrases, or other elements, which persons in the same trade would be entitled, if they took steps, to stop him from using, he gets in time a right to sue them which prevents those who could have stopped him a one time from asserting at a latter stage their right to an injunction. In (1960) 23 R P C 1, Mc. Caw Stevenson and Orr Ltd. V Lee Bros. In (1960) 23 R P C 1, Mc. Caw Stevenson and Orr Ltd. V Lee Bros. acquiescence for four years was help to be sufficient to preclude the plaintiff from succeeding. In 1897 the plaintiffs in that case registered the word glacier as a trade mark in respect of transparent paper as a substitute for stained glass. As the result of user the word had become identified w ith the plaintiffs goods. In 1900 the defendants commenced to sell similar goods under the name "glazine . In 1905 the plaintiffs commenced an action for infringement. The defendants denied that the use of the word glazine was calculated to deceive and also pleaded acquiescence. A director of the plaintiff company admitted that he had known of the use of the word glazine by the defendants for our year-he would not say it was not five years. It was held that the plaintiffs failed on the merits and by reason of their delay in bringing the action. Delay simplicitor may be no defence to a suit for infringement of a trade mark, but the decisions to which I have REFERRED TO to clearly indicate that where a trader allows a rival trader to expend money over a considerable period in the building up of a business with the aid of a mark similar to his own he will not be allowed to stop his rival s business. If he were permitted to do so great loss would be caused not only to the rival trader but to those who depend on his business for their livelihood. A village may develop into a large twon as the result of the building up of a business and most of the inhabitants may be dependent on the business. No hard and fast rule can be laid down for deciding when a person has, as the result of inaction, lost the right of stopping another using his mark. As pointed out in (1987) 14 R P C 37 at p. 43, Row land V Michell. each case must depend on its own circumstances , but obviously a person cannot be allowed to stand by indefinitely without suffer the consequence". ( 11 ) THERE is absolutely no objection at all by the plaintiff to the user of the name by the defendant. each case must depend on its own circumstances , but obviously a person cannot be allowed to stand by indefinitely without suffer the consequence". ( 11 ) THERE is absolutely no objection at all by the plaintiff to the user of the name by the defendant. As a matter of fact Mohan Lal the second brother had also issued some letters from the defendant s place of business. I have gone through the documents filed by the defendant very carefully and the conclusion is irresistible that the plaintiff had acquiesced in the user of the name by the defendant. ( 12 ) THE principle, to be considered to the grant of injunction are well settled. The Supreme Court in the case Delhi Development Authority Vs. Skipper Construction and Anr. JT 1995 (2) SC page 391 has again reiterated and had categorically laid down that the plaintiff has to show a prima facie strong case, and the balance of conveience is in its favour and it will be put to irreparable loss and hardship if interim injunction is refused. the plaintiff has also filed the documents to show the user of the name. But that is not a matter in dispute at all. ( 13 ) THE question is as I have stated whether allegation of the plaintiff that the plaintiff came to know about the user by the defendant only in April 1995 as stated in para 8 of the plaint is true. The plaintiff has not come forward for with clean hands. When I put a question to the learned counsel for the plaintiff about the Telephone Director) the reply was, his clients are not aware of the entry in the Telephone Directory That shows that the plaintiffs are trying to over-reach the defendant. The conduct of the plaintiffs is not such as to merit consideration. In the event of the plaintiff succeeding the case at the time of trial the plaintiffs can always recover the damages from the defendant. I feel no great injustice will be done to the defendant if injunction is granted in favour of the plaintiff. Learned counsel for the plaintiff relied upon the following cases: M/s Hindustan Pencils Pvt. Ltd Vs. India Stationery Products Co. and another AIR 1990 Del 19 , Sh Swaran Singh Trading as Appliances Emporium Vs. M/s Usha Industries (India) New Delhi and ors. Learned counsel for the plaintiff relied upon the following cases: M/s Hindustan Pencils Pvt. Ltd Vs. India Stationery Products Co. and another AIR 1990 Del 19 , Sh Swaran Singh Trading as Appliances Emporium Vs. M/s Usha Industries (India) New Delhi and ors. AIR 1986 Del 343 and J. R. Parkington and Coy Ltd Vs. Fredrick Robinson Ld. (1946) 63 RFC 171. ( 14 ) I have perused those judgments and I do not find any relevance which could be called in add by the plaintiffs in support of his case. The notice letter entirely different and the plaintiff cannot rely upon these cases for the purpose of getting injunction in this case. Therefore. IA 8104/95_ for injunction is dismissed. ( 15 ) THERE shall be no order as to costs.