Case: Power Control Appliances Vs. Sumeet Machines Pvt. Ltd

the materials on record as they now exist to decide the plea of honest and concurrent user or acquiescence. The learned Single Judge in paragraph 18 of his judgment reported in observes "A careful perusal of the above-referred documents in particular along with other voluminous documents, clinch the fact that Smt. Maduri Mathur, mother of the deponents in the affidavits filed in support of the applications, as well as the counter affidavit, got the trade mark SUMEET registered long back as early as 1964 and that by the very strenuous efforts, hard work, skill, exertion, devised so many designs improved the appliances on par with the modem technology and along with other members of the family, viz., husband, sons and daughters was able to start different business concerns as specifically pleaded in the affidavit and reply affidavits and by entering into various agreements among themselves and by remaining as share-holders and directors in the companies engaged in manufacturing the various domestic power operated machines like mixies, washing machines and so on by using the trade name marketed SUMEET mixies in various categories and numbers. It has to be seen that during the said sojourn. Thiru Ajay Prakash Mathur, the present Managing Director of the first respondent was also the director of the plaintiffs company previously and still continuing as shareholder and that during 1984, the first defendant company was incorporated as private limited company under the Companies Act and in adopting the name SUMEET, his mother Smt. Madhuri Mathur as well as his father gave written consent to the authority constituted under the Companies Act and that the several number of documents produced on behalf of the applicant as well as the respondents, clearly demonstrate the fact that Smt. Madhuri Mathurs family including her husband, daughter, two sons and other family members were directly concerned and involved in all of their sister concerns including the first respondent company and have been engaged in manufacturing the various types of Sumeet home appliances and power operation machines and being marketed through as common distributor, viz., M/s. Reprographers and Engineers, Madras and all of their accounts were being audited by one and the same auditors consumed and that even to provide the working capital of the first respondent company being run by Thiru Ajay Prakash Mathur it appears that in the company of the first respondent, both the mother and the father stood guarantee for a sum of Rs. 2, 00, 00, 000/- in the Bank of Hyderabad. All virtually go to show that each and everyone in the family of Smt. Madhuri Mathur having involved in almost all the companies incorporated under the Companies Act by entering into agreement or otherwise and having the directorship and shares in almost all the companies and deeply involved in manufacturing either the components, motors and other accessories for their companies products under the registered trade name and mark, SUMEET and that accordingly, they are being marketed through the company distributor." 40. In paragraphs 19 & 20 of the impugned judgment the learned Judge refers to the documents filed by the Respondent. None of these documents throw any light as to the manufacture. It might be that the first respondent was marketing, having regard to the close relationship as mother and son between the plaintiff and the first defendant. This was why the Division Bench remarked "There is some evidence showing that the first defendant has been at least marketing domestic mixers allegedly manufactured by Power Control and Appliances (Bombay), Limited since its incorporation. Whether it actually manufeatured before September 1991, however, is not possible to answer without proper evidence as to the actual manufacturing of the kitchen mixers by the first defendant." * 41. So, as such there is no evidence of manufacture. As rightly contended by Mr. Chidambaram, learned counsel, marketing may not advance the case of the first defendant-respondent. We do not think, as is urged by Mr. Soli J. Sorabjee, learned counsel, either the criminal complaint or the averment in the plaint would amount to implied consent, more so, when no oral evidence has been let in, the parties having chosen to proceeding on affidavit and counter affidavit 42. In 1984 the first defendant-company came to be incorporated. This was for the purpose of diversifying the industrial activity of the family group for manufacturing other technical appliances like washing machines, vacuum cleaners etc. But there is nothing on record to show that the first defendant was manufacturing earlier than the alleged violation of trade mark, copyright and design, as stated in the plaint 43. We find considerable difficulty in appreciating the conclusion of the Division Bench which had failed to note that the proprietor of the trade mark is Sumeet Research and Holdings Ltd. Again, the complaint of infringement of trade mark is not against Ajay Mathur but against Sumeet Machines Private Limited and M/s. Sekar and Sagar44. It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the first defendant-respondent has proclaimed himself as a rival of the plaintiffs his claim as joint owner is impermissible in law. Even then, the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other45. The plea of quasi-partnership was never urged in the pleading. As regards copyright there is no plea of assignment. The High Court had failed to note that the plea of honest and concurrent user as stated in Section 12(3) of 1958 Act for securing the concurrent registration is not a valid defence for the infringement of copyright. For all these reasons we are unable to support the judgments of the High Court under appeal. We reiterate that on the material on record as is available at present the denial of injunction, once the infringement of trade mark copyright and design is established, cannot be supported.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]21. Under Sections 19 and 54 of the Copyright Act reproduction of the copyright itself is infringement unless there is specific assignments in writting by the proprietor. In this case, there is not even a plea that Mrs. Madhuri Mathuri assigned the copyright in the outer carton, handbook and guarantee card. The concept of honest and concurrent user found in Section 12(3) of the 1958 Act for securing concurrent registration is totally irrelevant as defence in a suit for infringement and copyright arising out of a different Act namely, 1957 Act. Therefore, there can be no honest and concurrent user of ones copyright by another. After 1958 Act, the plea of acquiescence is not available at all.So, as such there is no evidence of manufacture. As rightly contended by Mr. Chidambaram, learned counsel, marketing may not advance the case of the firstWe do not think, as is urged by Mr. Soli J. Sorabjee, learned counsel, either the criminal complaint or the averment in the plaint would amount to implied consent, more so, when no oral evidence has been let in, the parties having chosen to proceeding on affidavit and counterWe find considerable difficulty in appreciating the conclusion of the Division Bench which had failed to note that the proprietor of the trade mark is Sumeet Research and Holdings Ltd. Again, the complaint of infringement of trade mark is not against Ajay Mathur but against Sumeet Machines Private Limited and M/s. Sekar and Sagar44. It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the firsthas proclaimed himself as a rival of the plaintiffs his claim as joint owner is impermissible in law. Even then, the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other45. The plea ofwas never urged in the pleading. As regards copyright there is no plea of assignment. The High Court had failed to note that the plea of honest and concurrent user as stated in Section 12(3) of 1958 Act for securing the concurrent registration is not a valid defence for the infringement of copyright. For all these reasons we are unable to support the judgments of the High Court under appeal. We reiterate that on the material on record as is available at present the denial of injunction, once the infringement of trade mark copyright and design is established, cannot be supported.