F.A.O No.2495 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. F.A.O No.2495 of 2007 Date of Decision: 18.09.2009 M/s Bhaiya Sweets & Others ....Appellants Versus M/s Bhaiya Sweets (Burfi) ...Respondent CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. S.K. Arora, Advocate for the appellant. Mr. Amit Jhanji, Advocate for the respondent. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. This is an appeal against the Order dated 15-09-2006 passed by District Judge, Faridkot, vide which, the appellants have been restrained from manufacturing, selling, offering for sale of sweets under the Trade Mark “Bhaiya Sweets”. While challenging the said order, learned counsel for the appellants raised his first argument that on 15-05-2006, the defendants in the suit at Faridkot filed an application for dismissing of the suit stating therein that the Civil Court at Faridkot has no jurisdiction to hear and F.A.O No.2495 of 2007 2 decide the suit as the subject matter of the suit is the shop of the defendants which is allegedly selling sweets in the name and style of “Bhaiya Sweets” and it is situated inside Delhi Gate, Ferozepur City. As such, the Civil Court at Faridkot alone is competent to hear and decide the suit. The respondent contested the application. The said application finally came up for hearing before District Judge, Faridkot and the District Judge, vide its order dated 15-09-2006 allowed the application holding that the suit is maintainable where the defendant resides or carried out the business namely at Ferozepur. The plaint was ordered to be returned for its presentation before the proper court at Ferozepur. Instead of presenting the same plaint, the respondent filed a fresh suit for permanent injunction against the appellants on 27-10-2006 at Civil Court, Ferozepur, without any order of amendment in the plaint. Secondly, the Trade Mark “Bhaiya Sweets (Burfi)” has not been registered in the name of the respondent/plaintiff till date as claimed by him in the suit. Sohan Lal Chawla was the predecessor of the appellants, as well as, the respondent. The respondent/plaintiff Vinoo Kumar Chawla claims to have inherited the Trade Mark on the basis of Will dated 08-08-1995, which has been denied and disputed by the appellants and other legal heirs of Sohan Lal Chawla. So the dispute with regard to the inheritance of Sohan Lal Chawla is yet to be decided between the parties. Thirdly, as per the case of the plaintiff, he came to know about use of Trade Mark Bhaiya Sweets by the petitioners in the year 2001 but he filed the suit in the year 2006 i.e. after lapse of 5 years. The period of five years is sufficient to conclude that he had acquiesced in the use of the said Trade Mark by the appellants. As such, no relief of injunction could have been granted in favour of the respondent/plaintiff, in view of the acquiescence by the plaintiff in the honest, bonafide and continuous use of F.A.O No.2495 of 2007 3 Trade Mark in question. Learned counsel for the respondent, on the other hand, contended that Sohan Lal was the sole proprietor of the firm who started preparing and selling sweets in general but the burfi was special item prepared and sold by Sohan Lal. It was also stated that the firm M/s “Bhaiya Sweets (Burfi)”, a sole proprietorship, was incorporated in the year 1945 and since then has been carrying on the business of manufacturing and sale of sweets particularly burfi at Faridkot. It was further stated that the distinctive Trade Mark of the firm was coined and invented by his grand father late Sh. Sohan Lal Chawla and the same has been inherited by him by virtue of a registered Will of his grand father dated 08-08-1995. The respondent/plaintiff further took the stand that similar trade mark is being used by the appellant (defendants therein) under identical packages for sale of their products under the deceptively similar marks “Bhaiya Sweets” and also they are using the similar packing material which amounts to infringement of his copyright. Learned counsel for the parties have been heard. Taking up the first argument of learned counsel for the appellant that instead of presenting the same plaint, as ordered by the Civil Court at Faridkot vide its order dated 15-09-2006, the respondent filed a fresh suit for permanent injunction without any order of amendment in the plaint, it is seen that this is an appeal against the order of an interim injunction. It shall be open to the appellants to raise the same at the time of final decision of the suit. For the purpose of an ad-interim injunction, the plaintiff requires to establish a case of balance of convenience and that it will suffer irreparable loss and injury. With respect to the second argument of learned counsel for the appellant, learned counsel for the respondent invited the Court's attention to P-5, which is the certificate issuing the Trade Mark i.e. `Bhaiya F.A.O No.2495 of 2007 4 Sweets (Burfi)' which was registered vide registration No. 661629 dated 05-04-1995. It was also stated that the Trade Mark, under the name of `Bhaiya Milk Products', was registered vide registration No.1277897 dated 12-04-2004. Learned counsel for the appellants, however, disputed the same, on the ground that the same stood issued in the name of Sohan Lal Chawla, who was predecessor of the plaintiffs as well as the defendants. The objection of the appellant is without merit in view of the judgment and decree dated 02-02-2009, placed on record by the learned counsel for the respondent, which was passed in a Civil Suit between the present defendant-plaintiffs, wherein, a similar suit, as the present one, was filed by the respondent against some other persons. In that suit, it was held as follows :- “XXX XXX XXX 11. The question to be seen is whether after the death of Bhaiya Sohan Lal, the plaintiff Venu Chawla, who is his grand son (son's son) has inherited his business and trade name or it is defendant No.1, who is his grandson (son of one of his daughters) has inherited his business, good will and trade name etc? 12. During his life time Sohan Lal executed a Will dated 08-08-1995 Ex.P66 in favour of the plaintiff Venu Chawla. The execution of this Will has been proved by AW3 Vijay Kumar, Deed Writer, who is its scribe and also by AW2 Shri Devinder Kumar Kaushal, Advocate, who is one of its attesting witnesses. The execution of this Will Ex.P66 has been duly proved by the plaintiff by examining the Deed Writer and one of the attesting witnesses of this Will. Against this Will, defendant No.1 firstly denied the execution of any such Will by Sohan Lal in favour of the plaintiff and secondly on the ground that at the time of execution of the alleged Will Sohan Lal was not keeping his senses well. The attesting witnesses AW2 Shri Devinder Kumar Kaushal, Advocate has categorically stated that F.A.O No.2495 of 2007 5 at the time of execution of the Will, the testator Sohan Lal was having sound disposing mind. The defendant failed to produce on record any evidence to show that the testator Sohan Lal was not possessing sound disposing mind at the time of execution of the Will Ex.P66. In this Will, the testator Sohan Lal has categorically bequeathed his movable and immovable assets in favour of the beneficiary Venu Chawla plaintiff. Moreover, during his life time, Sohan Lal had given a general power of attorney in favour of the plaintiff Venu Chawla. The power of attorney dated 19.05.1997 is a registered document. These two documents show the faith and affection of Sohan Lal since deceased in favour of the plaintiff and to the exclusion of the defendant Ramesh Kumar. Moreover, during his life time Sohan Lal and defendant No.1 had been inimical towards each other. The relations between them were strained and under these defendant to succeed to his name or fame or business. 13. XXX XXX XXX 14. In view of above pieces of oral as well as documentary evidence and my discussions in the preceding paras, I have reached at the conclusion that Bhaiya Sohan Lal used to prepare and sell Sweets and Burfi under the name and style of Bhaiya Sweets (Burfi), which was the trade mark registered in his name. The use of this trade name by the defendant or any body is the violation of trade mark rights of Sohan Lal and after his death of the plaintiff Venu Chawla, who has inherited his business by virtue of the Will dated 08-08-1995 Ex.P66. Using the Trade name Bhaiya Sweets (Burfi) by the defendant in any form, displaying the signboard to that effect outside his shop and using that trade mark on the box containers, polythene bags or other materials by the defendant, is illegal and infringement of plaintiff's rights. The sale of sweets or Burfi by the defendant under the trade name of Bhaiya Sweets (Burfi) is mischievous and deceptive F.A.O No.2495 of 2007 6 to the general public, which creates considerable confusion in the mind of the public as to who owns the trade name of Bhaiya Sweets (Burfi). Thus, defendant No.1 Ramesh Kumar is liable to be restrained from doing so and against the contesting defendant Ramesh Kumar.” Thus, prima-facie as of now, a finding by another Court on the basis of evidence has been recorded to show that the plaintiff-defendants have inherited the trade mark by virtue of a registered Will of his grand father dated 08-08-1995. Thus, the registration of a trade mark gives the plaintiff- defendants an exclusive right of use of trade mark. He has a right to protect his trade mark and seek injunction, restraining person from infringing the same and causing irreparable damage. The argument of learned counsel for the appellants that they were using the trademark since long and hence, the plaintiff is not entitled to equitable relief, has no merit, in view of the fact that the earlier suit of the plaintiff was filed at Faridkot in the year 2003, i.e prior to the lapse of five yeas from the time i.e. in the year 2001 when he got to know that some people in the area were using identical packages. The said Court at Faridkot returned the plaint and the present suit was filed immediately on 15-05-2006. The appellants, therefore, cannot take benefit on the ground of acquiescence. The observations made herein shall have no bearing on the facts of the present case. The appeal is, accordingly dismissed, being devoid of merits. (NIRMALJIT KAUR) 18.09.2009 JUDGE gurpreet