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2009 DIGILAW 471 (JK)

Khursid Ahmed Bhat v. Haji Bashir Ahmed Bhat

2009-10-01

MUZAFFAR HUSSAIN ATTAR

body2009
1. Respondent instituted civil original suit against appellants in the court of learned Principal District Judge Srinagar in which the following reliefs are claimed:- "a. A decree for rendition of comprehensive and all accounts for the profits made by the defendants infringing the plaintiffs `Registered Trade Marks stated and submitted above. b. A decree for delivering (delivery-up) of the infringing tools, instruments, labels, material, seals, marks etc used during and in the course of infringing the plaintiffs `Registered Trade Mark. c. A decree of perpetual injunction restraining the defendants perpetually from infringing the plaintiffs "Registered Trade Marks by any manner or method. d. Any other relief which this Honble Court deems fit and proper in the facts and circumstances of the case be also passed in favour of the plaintiff and against the defendants." 2. Respondent claimed to be proprietor of the small scale unit namely M/s Haji Bashir Ahmad Bhat and Sons dealing in manufacturing, processing, packing and sale of Tobacco and allied products (Naswar), with its head office located at Jamalata Srinagar. The respondent claimed that the said SSI Unit is registered with various authorities. The further case of the respondent is that he uses various packings for marketing products and packging of the products are significant because consumers of the products are mostly rustic and illiterate people for whom packing getup, which include colors/marks, is the only guide that leads them to the identification of the product. The further claim of the respondent in the suit is that the appellants have been manufacturing, storing and selling inferior quality products in the market, and Marks/packings have been fraudulently tailor made to be deceptively similar to that of Marks/Packings of respondent, and in process appellants are causing immense damage and loss to the respondent. The respondents products are registered under the Trade Mark Act, 1999. The respondent has placed the sample of his product along with the samples of the product of the appellants on the suit record. Along with the suit respondent filed an application for temporary injunction, and initially the learned trial Judge passed an ex-parte ad-interim order. The respondents products are registered under the Trade Mark Act, 1999. The respondent has placed the sample of his product along with the samples of the product of the appellants on the suit record. Along with the suit respondent filed an application for temporary injunction, and initially the learned trial Judge passed an ex-parte ad-interim order. Appellants filed an application seeking vacation of the ex-parte order and after hearing of the parties the learned trial Judge vide its order dated 10th June, 2009 allowed the temporary injunction application of the respondent and appellants were temporarily restrained till disposal of the main suit from using the marks "New Mour Marka", "Green Star Brand", and "Green Star Marks" while manufacturing and marketing their products. It is this order which is under challenge in this civil first miscellaneous appeal. 3. Heard learned counsel for parties. Considered the matter. 4. Ld counsel for appellants Mr. M.A. Qayoom, submitted that the order under appeal is illegal because the ld. trial Judge has failed to consider the contentions raised by the appellants in the application seeking vacation of the ad-interim order. The ld. counsel further submitted that there is no resemblance between the packets as also the Trade Marks of the products being manufactured and sold in the market by the appellants with that of the products manufactured and sold by the respondent. The ld. counsel further submitted that the suit is not maintainable at Srinagar as the respondent has been registered under the Trade Mark Act of 1999 at Delhi. The ld. counsel further submitted that trademark of the appellants are registered with various authorities in the State. Ld. Counsel also submitted that the interim relief which has been granted by ld. trial Judge is beyond the relief sought for in the main suit and the ld. trial Judge could not pass the order impugned in the appeal. The learned counsel further submitted that the respondent, in the suit instituted by the appellants against him, which suit is pending on the files of ld. Sub Judge Municipal Magistrate Srinagar has appeared as witness wherein he has stated that he is not conducting any business. The ld. counsel would thus submit that the respondent is not entitled to claim any privilege in respect of trademark. The ld. Sub Judge Municipal Magistrate Srinagar has appeared as witness wherein he has stated that he is not conducting any business. The ld. counsel would thus submit that the respondent is not entitled to claim any privilege in respect of trademark. The ld. counsel also referred to and relied upon the judgment of the Honble Supreme Court reported in AIR 2000 SC 2114, (1999) 2 SCC 377. 5. Mr. M.A. Rathore ld. counsel for respondent, however, supported the order and the reasons recorded in the order, impugned in this appeal. The learned counsel was at pains to explain that the trade mark adopted by the appellants are deceptively similar to those of the trademark adopted by the respondent and registered by the competent authority under the trademark Act of 1999. The ld. counsel further submitted, the very fact that the registered trade mark of the respondent has been infringed, a case for issuance of interim injunction is made out. The ld. counsel further submitted that the respondent is registered user of trade mark "Star Brand" "More Marka and "Star Mark" and all these are registered under the provisions of Trade Mark Act of 1999. The ld counsel also referred to and relied upon the judgment of the Honble Supreme Court reported in AIR 2006 SC 3304, AIR 2008 (NOC) Del 128, AIR 2007 (NOC) 1988 (Del) and submitted that in view of the law laid down in these judgments the appeal merits dismissal. 6. Convictions and concepts of an individual get reflected in his dealings with other creatures inhibiting this universe which include fellow citizens. Relative strength of ones convictions get transformed into his actions and spill-over to his field of activity. 7. A human being may be identified by Mark called "Name" but he is being "known" by his convictions and characteristics which exude from his personality. A human being covers vast field of activities on his sojourn on this planet, called "Earth". One such essential activity is dealing with fellow human beings. In the unfathomable field of activity, commerce and trade may be dating back to human history itself. 8. All faiths, philosophies and thoughts visualize a world based on principles of morality and ethics, and simultaneously expect to create surroundings of pristine purity. One such essential activity is dealing with fellow human beings. In the unfathomable field of activity, commerce and trade may be dating back to human history itself. 8. All faiths, philosophies and thoughts visualize a world based on principles of morality and ethics, and simultaneously expect to create surroundings of pristine purity. The trade and commerce is to be carried on, on the fundamental principles of truth, fairness and honest dealings, which create an aura of distinctive character around a commodity, which one manufactures and sells in the market. The commodity is being "known" by its characteristics which get manifested into trademark with which it is identified in the trade circle by consumers. The good-will earned, and reputation gained, becomes hallmark of, the trademark, of a product. It cannot be allowed to be unscrupulously copied, as fall out and consequence will result in colossal loss to the owner in the field of trade and commerce. 9. In a case of this nature where infringement of trade mark is claimed the court is not only to consider the factum of registration of trade mark with the competent authority under the Trade Marks Act, 1999, but is also to consider the relative strength of the case of competing parties. The court has also to consider the similarities and dissimilarities of the trademarks. When the court considers all these aspects then alone it will come to just and lawful conclusion as to whether there is any infringement of the trademark of the party complaining the same, and court will thus be in position to record a finding as to whether the complaining party has projected a genuine grievance. 10. The relief sought for in the main suit do authorize the court to pass an interim order to restrain the defendant, pending disposal of the suit from using the trademarks. The interim relief sought for is not beyond the relief sought in the main suit. 11. The product involved in this case is "Naswar" which both appellants and respondent are manufacturing and selling to the consumers. The ld. The interim relief sought for is not beyond the relief sought in the main suit. 11. The product involved in this case is "Naswar" which both appellants and respondent are manufacturing and selling to the consumers. The ld. trial judge has passed the order impugned in this appeal after arriving at the conclusion reflected in the order, relevant paragraph thereof is reproduced as under:- "The addition of words "new or green" to the words used in the registered trademarks does not make marks different from th words in the registered trade marks and are prima facie bound to mislead the consumers. So viewed, the applicant has made out a prima facie case of infringement of his registered trade marks by the non-applicants by use of the marks appearing in Annexure A-7 to the application. The balance of convenience in the circumstances lies in favour of the applicant and against the non-applicants. The applicant is likely to be visited with an irreparable loss and injury making it impossible to compensate the applicant, in case ad-interim relief injunction is not granted in favour of the applicant and against the non-applicant " 12. The ld. trial Judge in order to arrive at such conclusion was duty bound to spell out the relative similarities and also dissimilarities of trade marks and the pouches. It is only after referring to and explaining the similarities and dissimilarities the ld. trial Judge would prima-facie come to conclusion as to whether the trade mark adopted by the appellants is deceptively similar to that of the respondent. The ld. trial Judge has not compared the two trade Marks except making reference to the words "New or Green". This in law would not be sufficient compliance in determining as to whether there has been infringement of trademark. The ld. trial Judge was required to examine the trademarks closely and point out similarities and dissimilarities. The ld. trial Judge has not considered these aspects of the matter. It is only after considering the similarities and dissimilarities of the trademark of the parties in all details that the relative strength of the case of the competing parties could be adjudged even for prima-facie purposes. Mere recording of prima-facie finding of infringement of trademark would not entitle the person having registered trademark to a relief. It is only after considering the similarities and dissimilarities of the trademark of the parties in all details that the relative strength of the case of the competing parties could be adjudged even for prima-facie purposes. Mere recording of prima-facie finding of infringement of trademark would not entitle the person having registered trademark to a relief. The relative strength of the case of the competing parties has to be considered and high lighted and thereafter a finding recorded. 13. The court in such type of cases has to put the respective trade marks to phonetical, visual and ocular test. It is on close examination of these facets of case, even for prima facie purposes, that a finding one way or the other way can be recorded. The learned trial Judge has not delineated and considered these important aspects of case in the impugned order. 14. Right to carry on trade, occupation and business is a fundamental right guaranteed under Art. 19 (i) (g) of Constitution. Right to earn livelihood is an important facet of Art. 21. The orders which have the potential of affecting such right cannot be passed, without approaching the problem projected, in strict compliance of the law occupying the field. O. 39 R1 & 2 does authorize court to pass interim orders, but such orders have to be passed in tune with settled principles of law. 15. The order impugned in this backdrop is rendered illegal and is accordingly set aside. The ld. trial judge will re-consider the matter in view of the observations made in this judgment and will accordingly pass orders in accordance with law after hearing the parties. The ld. trial Judge is requested to dispose of the injunction application preferably within a period of one month from the date the record is received by him. Registry to send back the record immediately. Appeal disposed of along with all connected CMPs.