Ved Prakash vs Samir Kumar And Ors.
1994 Latest Caselaw 504 Del

JUDGMENT

P.K. Bahri, J.

(1) I have heard the arguments in this application which seeks interim injunction against the defendants till the disposal of the suit.

(2) The case set up by the plaintiff, in brief, is that he is trading under the name and style of 'Corporate Management and Computer Systems' (for short 'CMOS') since July 1984 and this mark Cmcs has become very well known in the field of computer training as computer training being imparted by the plaintiff. It is averred that the plaintiff has built up a reputation under the said trade mark and has given wide publicity to this mark of the plaintiff and the plaintiff has achieved a lot of success in his business and if anyone else is allowed to use this trade mark it would result in S.No-1560/93 in confusion and would amount to deception. According to the plaintiff, defendants 1 & 2 are ex-employees of the plaintiff and since May 1992 they have started using the same trade mark as of the plaintiff with a view to take advantage of the reputation built by the plaintiff in this field of computer training.

(3) The defendants have contested the suit and have pleaded that the plaintiff is not the proprietor of the trade mark 'CMCS' and in fact, this trade mark belongs to some other person and the plaintiff has pirated this trade mark.

(4) It it no doubt evident that the trade mark being used by the defendants is almost similar to the trade mark of the plaintiff and the same is likely to deceive the general public as to the ownership of this trade mark. However, a legal question has been raised by learned counsel for the defendants that this 'CMCS' trade mark, in fact, belongs to a Govt. Organization, namely, Cmc Limited and the said organization has already filed a suit against the plaintiff seeking injunction to restrain the plaintiff from using the said trade mark. So, it is argued that the plaintiff being praetors of the trade mark of third person is not entitled to have relief of injunction against the defendants.

(5) In the replication the plaintiff admitted that such a suit had been filed by the Govt.Undertaking against the plaintiff but the plea taken is that the plaintiff has been using this particular trade mark before the same was used by the said Govt.Undertaking. I am told that the said suit was dismissed in default but later on an application seeking restoration of the said suit has been filed which is still pending. The said Govt. Undertaking has been brought into existence admittedly much before the plaintiff started using the aforesaid trade mark. 'CMCS' trade mark, in fact, is the short abbreviation of the said Govt.Undertaking which is also functioning in the same field. So, prima facie, it appears that the plaintiff is the praetors of the trade mark belonging to the third person. A similar question arose for decision in the case of Capital Plastic Industries Vs Kapital Plastic Industries. 1989 Ptc 98 and it was held by a Division Bench of this Court that user of the trade mark rabber/rabber by the plaintiff and the trade mark rabber by the defendant being tainted with piracy from the very beginning and no law having been brought to notice providing protection to the praetors of a trade mark and thus, the Division Bench proceeded to vacate the ex-parte injunction granted in that case and directed the defendant only to maintain true and proper accounts of its dealings.

(6) Counsel for the plaintiff has brought to my notice certain observations made by Mccarthy in, his book 'MCCARTHY On TRADEMARKS' at point 31.39 which lays down that in a trade mark infringement case , a claim by the defendant that a third party has rights in the mark superior to the plaintiff is in effect, a jus tertii defense. It is observed that outside of trade mark law, jus tertii is a disfavored defense, meaning thereby even the learned author is of the view that such a defense is available in trade mark cases.

(7) Counsel for the plaintiff has referred to M/s.Kumar Electric Works & Anr. Vs M/s.Olympia Home Appliances(P) Ltd., , wherein the plea was taken that there has been other companies having similar trade mark but the learned Judge held that it is not established prima facie that those companies are trading in the same type of electronics home appliances.

(8) The learned Judge in para 10 of the judgment did notice the contention that title plaintiff being praetors is not entitled to any relief but the learned Judge turned down the said contention relying on a judgment reported as Kumar Electric Works Vs Anuj Electronics, 1989(2) Arbitration Law Reporter. 133. It appears that the judgment of the Division Bench in the case of Capital Plastic Industries (supra was not brought to the notice of the learned Single Judge and the judgment given in M/s.Kumar Electric Works Vs Anuj Electronics (supra) the argument was noticed in para 10 of the judgment that as the plaintiff and defendant are both praetorspraetorsof trade mark belonging to Japanese company, thus, relief of injunction cannot be given to the plaintiff and the Division Bench's judgment was referred to. The learned Judge held that there is no evidence to show that Japanese company had ever used this trade mark in this country and thus, in view of such peculiar facts the Single Bench held that the plaintiff was entitled to the said relief. So, the ratio laid down by the Division Bench was held not applicable to the facts of the said case. In the case of M/s.Kumar Electric Works Vs Olympia Home Appliances (P) Ltd. (supra) the learned Judge was not right in holding that this particular argument that a plaintiff who is a praetors of trade mark of another and is not entitled to relief has been negatived in the previous case. The said case was based on its own facts where the trade mark was not being in use and that is why it was held that the Division Bench's judgment was not applicable. In the case of M/s.Kumar Electric Works Vs Anuj Electronics, the position was same that it was Japanese company's trade mark which was adopted by both the parties while Japanese company was of marketing any goods under its trade mark in India. These two judgments do not help the case of the plaintiff in any manner. Again in the case of Cool-ways India Vs Princo Air Conditioning and Refrigeration, 1993(1) Arbitration Law Reporter 401, the judgment of the Division Bench was noticed but was held inapplicable to the facts of the said case.

(9) In the present case, the Govt.Undertaking is very much in the field and has been incorporated much before the plaintiff came into picture and the trade mark 'CMCS' represents the trade name of the said Govt.Undertaking and the plaintiff appears to have pirated the said trade mark. Hence, prima facie, the plaintiff has l.ii li'd to show that he is entitled to obtain the relief of injunction. However, nothing said in this order shall affect the merits of the case which have to be proved by leading evidence.

(10) I dismiss the application but I give directions to the defendants to maintain true and proper accounts of its business and file a copy of the statement of account quarterly in this court.