Reliable International And Ors. vs Ashok Dang
1997 Latest Caselaw 870 Del

JUDGMENT

K. Ramamoorthy, J.

(1) The four plaintiffs have filed a suit for injunction against the defendant restraining the defendant from carrying on its business as manufacturers or vendors of the electrical goods using the trade mark Comet and for injunction restraining the defendant from using the trade style Reliable INDIA; for injunction restraining the defendant from passing off the electrical goods except the electrical fans, cooler pumps under the trade mark Comet and for account of profits.

(2) The case of the plaintiffs briefly stated is this. The plaintiffs and the defendant had been carrying on the business of manufacturing and marketing of electrical goods and appliances such as electric, iron, immersion heaters, room heaters, hot plates, mixer grinders, juicers, toasters, geysers, heat convectors, fans coolers, table lamps, cooking heaters, ovens and gas tenders etc. for the several years. For the year 1975, the plaintiffs and the defendant adopted the trade mark Comet for selling their projects: The trade mark Comet was also registered by them under Clauses 7,9 and 11 of the Trade and Merchandise Marks Act, 1958. The firm established on 1.5.1989 under the name and style of Reliable International and that partnership is carrying the business since then. By virtue of dissolution deed dated 6.8.1994, the defendant retired from the partnership and the defendant retired with effect from 31.7.1994. There was also a deed of agreement on 27.8.1994. The trade mark Comet was taken by the plaintiffs and the defendant was not allowed to use the trade mark Comet in respect of these three registered trademark which was done under Clauses 7, 9 and II. Under the agreement dated 27.8.1994, the defendant was allowed to use the trade mark Comet with reference to three items, namely, coolers, cooler pumps and Electricity fans.

(3) The defendant had started a new showroom under the trade name of M/s. Reliable India at 1, Narain Market, Sadar Bazar, Delhi-110006. The defendant who was using the name Reliable is trying to cause confusion and is guilty of passing off.

(4) The defendant filed the written statement refuting the allegations in the plaint. It is the case of the defendant that the word Reliable general and descriptive word and the plaintiff cannot claim any monopoly and ownership. It is stated by the defendant that " there is no pleading anywhere in the plaint or the application that the defendant had used the trade mark Comet in respect of the goods for which it is registered. The defendant has never used the trade mark Comet in respect of the goods for which the plaintiffs hold registration. The defendant is the owner of the trade mark Comet in respect of fans, cooler, cooller pumps and motors. The defendant can use four items instead of three items as mentioned in the plaint.

(5) Ia No. 9737/94 This is an application filed on behalf of the plaintiff under Order Xxxix Rules I and 2 read with Section 151, Civil Procedure Code for injunction restraining the defendant from carrying on their business as manufacturers or vendors of the electrical goods and any other trade mark identical with and/or deceptively similar to the plaintiffs trade mark and also passing off their goods under the said trade mark and also using the trade style Reliable INDIA.

(6) Ia No. 10568/94 This is an application filed on behalf of the defendant under Order Xxxix Rule 4, Civil Procedure Code for vacation of stay.

(7) Ia No. 3443/95 This is an application filed on behalf of the plaintiffs under Order Xxxix Rules I and 2 read with Section 151, Civil Procedure Code for appropriate action being taken against the defendant as he is using the trade mark Comet in respect of electrical goods. Alongwith the application the plaintiffs have filed the photographs and the receipt for the photographs received from the Photo Deal Studio is annexed with the application as Annexure B showing that the photographs had been taken.

(8) Ia No.ll012/95, This is an application filed on behalf of the defendant under Order Xxxix Rules I and 2 read with Section 151, Civil Procedure Code against the plaintiffs for injunction restraining them from manufacturing, selling, offering for sale, advertising or displaying directly or indirectly, dealing in fans, coolers, cooler pumps and motors under trade mark Comet or any other trade mark identical with or deceptively similar to the trade mark Comet of defendant or any other word similar to that of defendant's trade mark and also from misrepresenting the public and trade that it is proprietor of trade mark Comet in respect of all electrical goods including fans, coolers, cooler pumps and motors.

(9) Defendant had also made a counter claim on 27.10.1995 for injunction restraining the plaintiffs from using the trade mark Comet with reference to fans, coolers, cooler pumps and motors and other reliefs.

(10) The point involved in this application for injunction would lie in a very narrow compass and the rights of the parties governed by the two documents; dissolution deed dated 6.8.1994 and the agreement dated 27.08.1994. In para 8 of the dissolution deed dated 6.8.1994 it is stated thus: | "THE firm is the registered owner of trade mark ' Comet for fans as well as all, other electrical goods, appliances and heating elements. It has been agreed amongst the retiring partner and the continuing partners that the trade mark 'COMET' hence onward on the fans, coolers, cooler pumps and motors shall be used by the referring partner and all other electrical goods, appliances and heating elements by the continuing partners. The retiring partner will not use the trade mark 'Comet' on any other electrical goods, heating elements and appliances, except the fans coolers and cooler pumps & motors and similarly, the continuing partners shall not use the trade mark 'Comet' on fans, coolers, cooler pumps & motors, but shall use on all other electrical goods, appliances and heating elements. The retiring partner or the continuing partners making any mis use of the trade mark shall be responsible for the damages caused to the other party."

(11) Therefore, it could be seen that the parties had agreed that the plaintiffs would use the trade mark Comet with reference to electrical goods appliances and heating elements and the defendant would use the trade mark Comet for fans, coolers, cooler pumps and motors. In the deed of agreement dated 27.8.1994 the agreement has become necessary for the purpose of getting the registration before the Registrar of the Trade Mark on the basis of the dissolution deed so that there could be no disputes between the parties with reference to user of the trade mark Comet. In the agreement dated 27.8.1994, Clause I of the agreement reads as under: The party of the other part shall continue to any on the business of manufacturing and marketing of electrical goods and appliances and heating elements under the name and style of M/s. Reliabale International at 9, Narain Market, Sadar Bazar, Delhi-110 006, under the Trade Mark 'COMET' registered in its favour in Clauses 7,9 and 11 of the Trade & Merchandise Marks Act, 1958, under application Nos 304671,359016 and 384130 of the dates 15.4.75,28.2.80 and 10.12.81, respectively. The said trade mark 'COMET' will not be used by the party of the other part in respect of manufacturing and marketing of Electric fans, coolers and cooler pumps) (included in Clause Ii of the Trade & Merchandise Marks Act, 1958. Clause 3 with reference to the right of the defendant provides as under: That the party of the First Part shall henceforth viz. from 1.8.1994, shall exclusively use the trade mark 'COMET' in relation to electric fans, coolers and cooler pumps for the registration of which the said M/s. Reliable International of 9, Narain Market, Sadar Bazar, Delhi-110 006, have already applied with the learned Trade Marks Registry at New Delhi, vide Application No. 511493 of the date 7.6.1989, in clause Ii of the Trade & Merchandise Marks Act, 1958, which is proceeding to registration, to which the party of the First Part hence-onward shall be the exclusive owner and proprietor. However, the party of the First Part shall not use the said trade mark 'COMET' in relation to any other electrical goods and appliances and heating element except the electric fans coolers and cooler pumps.

(12) In the light of this, the claim of the plaintiffs relating to the trade mark COMET' seeking to restrain the defendant from using the trade mark 'COMET' is not at all sustainable. The plaintiffs are entitled to use trade mark Comet except fans, coolers, cooler pumps and motors and the defendant shall be entitled to use the trade mark 'COMET' in respect of electrical fans, coolers, cooler pumps and motors:

(13) The next question is with reference to the trade mark RELIABLE. It does not require much argument to come to the conclusion that reliable is a general term and neither of the parties could claim exclusive right to the word RELIABLE. Accordingly, in Ia No. 9737/94, there shall be an injunction restraining the defendant from using the trade mark 'COMET' except four items i.e. fans, coolers, cooler pumps and motors.

(14) Mr. Chetan Sharma learned Counsel for the defendant sought to contend that the suit having not been properly valued, this is not the stage where the case should be considered. It should be decided at the time of trial of the case. This argument of the learned counsel for the defendant is not tenable.

(15) In Ia No. 10568/94 filed by the defendant under Order 39 Rule 4, no orders are necessary in view of the orders passed in Ia No. 9737/94. Therefore, this Ia is dismissed.

(16) Ia No. 3443/95 is filed by the plaintiff under Order 39 Rules 1 and 2 for taking appropriate action against the defendant. I went through the petition and there is absolute no substance therein and accordingly the same is dismissed.

(17) Ia No. 11012/95 is filed by the defendant under Order 39 Rules 1 and 2. There shall be an injunction restraining the plaintiffs from using the trade mark Comet with reference to fans, coolers, cooler pumps and motors. Therefore, this Ia is allowed.

(18) Accordingly, all the lAs are disposed of. Post the matter for further proceedings on 19.11.1997.