Delhi High Court
Mrs. Kiran Jain vs Mr. Janki Dass Jain And Others on 8 April, 2009
Author: S.N. Aggarwal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I. IA No. 2552/2004 in CS(OS) No. 155/2004
# Mrs. Kiran Jain ..... Plaintiff
! Through: Mr.Shailen Bhatia, Mr.Amit Jain and
Ms.Vandana Nathan, Advocates
Versus
$ Mr. Janki Dass Jain & Ors. .....Defendants
^ Through: Mr.Sudhir Chandra Aggarwal, Sr.
Advocate with Mr.Amarjit Singh,
and Mr.Mahendra Rana, Advocates.
[For Arihant Group)
+ II. IA No. 2551/2004 in CS(OS) No. 156/2004
# Mr. Jaininder Jain & Ors. ..... Plaintiffs
! Through: Mr.Shailen Bhatia, Mr.Amit Jain and
Ms.Vandana Nathan, Advocates
Versus
$ Mr. Arihant Jain & Ors. .....Defendants
^ Through: Mr.Sudhir Chandra Aggarwal, Sr.
Advocate with Mr.Amarjit Singh,
and Mr.Mahendra Rana, Advocates.
+ III. IA No. 2550/2004 in CS(OS) No. 157/2004
# Mr. Arihant Jain & Ors. ..... Plaintiffs
! Through: Mr.Sudhir Chandra Aggarwal, Sr.
Advocate with Mr.Amarjit Singh,
and Mr.Mahendra Rana, Advocates.
Versus
$ Mr. Jaininder Jain & Ors. .....Defendants
^ Through: Mr.Shailen Bhatia, Mr.Amit Jain and
Ms.Vandana Nathan, Advocates
CS(OS)Nos.155-157/2004 Page 1 of 37
Date of Decision: April 08, 2009
CORAM:
HON'BLE MR. JUSTICE S.N. AGGARWAL
1.
Whether reporters of Local paper may be allowed to see
the judgment? YES
2. To be referred to the reporter or not?YES
3. Whether the judgment should be reported in the
Digest?YES
S.N.AGGARWAL, J
These three interim injunction applications filed by the parties
against each other in their separate suits are proposed to be
decided by this common order. The dispute in all these three
applications relate to the use of trademark 'KANGARO'.
2 Briefly stated the facts of the case are that there are three
partnership firms namely M/s Kangaro Industries (Regd.), M/s Jain
Manufacturing Company and M/s Kanin (India) consisting of
partners from the family of Mr. Janki Dass Jain.
3 In the year 1959, Mr. Janki Dass Jain had established M/s
Kangaro Stationary Industries as a sole proprietorship firm, which in
1963 was converted into a partnership firm M/s Kangaro Industries
(Regd.) with Mr. Janki Dass Jain and Mr. Arihant Jain as its partners.
With the passage of time, other firms and companies were
formed/incorporated which included Jain Manufacturing Company
incorporated in the year 1978, M/s Kanin (India) Pvt. Ltd. in
September, 1983; M/s Kangaro (India) Pvt. Ltd. In May, 1987 and
M/s Kanin (India) in the year 1990. In all these units Mr. Janki Dass
Jain and his family members were either partners or Directors or
shareholders.
4 From time to time, five trademarks were registered as
'KANGARO' in respect of goods manufactured and produced by the
aforesaid firms/companies, the description of which is as follows:-
Sl. No. Regd. No. Name Class Date of registration
1 376224 Kangaro 16 25.05.1981
2 384556 Kangaro 16 23.12.1981
3 463530 Kangaro 7 24.11.1986
4 486516 Kangaro 8 26.02.1988
5 486510 Kangaro 16 26.02.1988
5 The first four registrations referred above are in favour of M/s
Kangaro Industries (Regd.) and fifth registration is in favour of M/s
Jain Manufacturing Company.
6 Mr. Janki Dass Jain had three sons namely Mr. Arihant Jain, Mr.
Jaininder Jain and Mr. Vishwa Jain. They along with their wives were
either partners or Directors in the firms/companies established by
the Jain family of Ludhiana from time to time. We are here
concerned with the dispute regarding use of mark of 'KANGARO' by
the three partnership firms namely M/s Kangaro Industries (Regd.),
M/s Jain Manufacturing Company and M/s Kanin (India). The
constitution of these three firms with the change made in its
constitution from time to time is as follows:-
"FIRM M/S KANGARO INDUSTRIES (REGD.)
03.04.1963 Arihant Jain & Janki Dass Jain took
over the business of proprietorship
firm of Janki Dass Jain
01.04.1974 Janki Dass Jain
Arihant Jain
Vishwa Jain } New Partners
Mrs. Kiran Jain}
31.03.1978 Retirement of Vishwa Jain
01.04.1978 Arihant Jain
Janki Dass Jain
Mr. Kiran Jain
31.03.1995 Retirement Deed
Retirement of
Mrs. Kiran Jain.
01.04.1995 Partnership Deed
Arihant Jain
Janki Dass Jain
Vishwa Jain }
Mrs. Raman Jain } New Partners
Mrs. Neelam Jain }
15.05.1995 Retirement Deed
Retirement of
Janki Dass Jain
16.05.1995 Partnership Deed
Arihant Jain
Vishwa Jain
Mrs. Raman Jain
Mrs. Neelam Jain
FIRM M/S KANIN (INDIA)
01.04.1989 Jaininder Jain
Mrs. Neelam Jain
01.01.1995 Partnership Deed
Jaininder Jain
Mrs. Neelam Jain
Arihant Jain }
Vishwa Jain }
Mrs. Raman Jain }
Ambrish Jain s/o } New Partners
Vishwa Jain
Ms. Archna Jain }
D/o Arihant Jain
31.03.1995 Retirement Deed
Retirement of
Jaininder Jain
01.04.1995 Partnership Deed
Mrs. Neelam Jain
Arihant Jain
Vishwa Jain
Mrs. Raman Jain
Ambrish Jain
Ms. Archna Jain
15.05.1995 Retirement Deed
Retirement of
Ambrish Jain
Ms. Archna Jain
16.05.1995 Partnership Deed
Mrs. Neelam Jain
Arihant Jain
Vishwa Jain
Mrs. Raman Jain
FIRM M/S JAIN MANUFACTURING COMPANY
1978 Smt. Saraswati Jain
Mr. Vishwa Jain
Mrs. Raman Jain
1988 Smt. Saraswati Jain expires
Mr. Vishwa Jain
Mrs. Raman Jain
01.01.1995 Partnership Deed
Mr. Vishwa Jain
Mrs. Raman Jain
Janki Dass Jain }
Jaininder Jain } New Partners
Mrs. Kiran Jain }
31.03.1995 Retirement Deed
Retirement of
Mr. Vishwa Jain
Mrs. Raman Jain
01.04.1995 Partnership Deed
Janki Dass Jain
Jaininder Jain
Mrs. Kiran Jain.
7 It may be seen from the constitution of the three partnership
firms given above that the change in the partnership was brought
out in these three firms on or about 31st March, 1995 when
partnership deeds & retirement deeds were executed between the
incoming and outgoing partners of these firms. The result of
reconstitution on or about 31st March/1st April, 1995 was that the
two firms namely M/s Kangaro Industries (Regd.) and M/s Kanin
(India) came to be owned by Mr. Arihant Jain and Mr. Vishwa Jain
and their families except that Mr. Janki Dass Jain remained partners
in M/s Kanin (India) Regd. till 15.05.1995 when he retired from the
said firm and after his retirement the above mentioned two firms
were exclusively owned by Mr. Arihant Jain and Mr. Vishwa Jain and
their families. The third firm M/s Jain Manufacturing Company came
to be owned by Mr. Jaininder Jain, his wife Mrs. Kiran Jain & father
Mr. Janki Dass Jain.
8 In the year 1992, an agreement was made between the above
three firms on 20.03.1992 that each of these firms will hold
registration of the trademark 'KANGARO' only in respect of the
goods actually manufactured and sold by them so as to avoid
overlapping of the goods. It is provided in the said agreement that
M/s Kangaro Industries (Regd.) will have a right to the use of
trademark 'KANGARO' in respect of paper punches and board clips,
M/s Kanin (India) will have a right in respect of staplers, staple pins
and staple pin removers and M/s Jain Manufacturing Company will
have a right in respect of Index file clips and base plates thereof.
9 On 16.08.1994, necessary requests were made in Form TM-36
to the Registrar, Trademarks for carrying out
modifications/amendments in Trademark No. 376244 and
Trademark No.486510 in conformity with the agreement dated
20.03.1992. Modifications/ amendments were carried out on
25.08.1994.
10 In the later half of December, 1994, differences arose between
the members of the Jain family and accordingly in December, 1994,
it was mutually agreed and decided to separate and distribute the
various concerns, their management and control amongst the
family members of Mr. Janki Dass Jain. It was decided that Mr.
Arihant Jain, Mr. Vishwa Jain along with their families will separate
from the rest of the family. It was agreed and understood that Mr.
Arihant Jain, Mr. Vishwa Jain together will take over the two
partnership firms namely M/s Kangaro Industries (Regd.) and M/s
Kanin (India). As regard the third partnership firm M/s Jain
Manufacturing Company, it was decided that the same will be taken
over by Mr. Jaininder Jain and his family. These understandings
were acted upon. The cross holdings in the three firms were
streamlined by execution of formal retirement deeds. Mrs. Kiran
Jain wife of Mr. Jaininder Jain retired from M/s Kangaro Industries
(Regd.), Mr. Jaininder Jain retired from M/s Kanin (India) and Mr.
Vishwa Jain and Mrs. Raman Jain retired from M/s Jain
Manufacturing Company on 31.03.1995 and thereafter the
partnership of the said businesses were reconstituted. Mr. Janki
Dass Jain also retired from M/s Kangaro Industries (Regd.) on
15.05.1995.
11 Consequent upon change in the constitution of three
partnership firms referred above, large sums of money as were
payable in terms of the respective retirement deeds were also paid
inter-se parties.
12 Even after the agreement of 1992 and the retirement and
reconstitution of the firms in 1995 but before the retirement of Mr.
Janki Dass Jain, there was rumbling and dissatisfaction between the
three brothers (S/sh Arihant Jain, Jaininder Jain and Mr. Vishwa Jain)
with regard to land, building and machinery. As a result thereof, the
three brothers on the persuation of their father agreed to refer the
disputes relating to land, building and machinery of partnership
firms to arbitration vide agreement dated 10.04.1995. Mr. Ram
Kumar Jain and Mr. Raj Kumar Behal were appointed as arbitrators.
13 On 14.04.1995, a document purporting to be a family
arrangement was prepared and was signed by all the three
brothers, their father Mr. Janki Dass Jain and also the two arbitrators
namely Mr. Ram Kumar Jain and Mr. Raj Kumar Behal.
14 On 23.11.1995 Form TM-24 was filed by Mr. Arihant Jain etc.
with the Registrar, Trademarks for removal of the names of Mr.
Janki Dass Jain and Mrs. Kiran Jain (wife of Mr. Jaininder Jain) from
the register of Trademarks and for assignment/transfer of the
trademark No.376224 and No. 463530 in his favour and in favour of
his brother Mr. Vishwa Jain and their respective wives. While this
application in Form TM-24 dated 23.11.1995 was pending, on
01.07.1996 yet another application in Form TM-24 was filed for the
same purpose duly signed by Mr. Arihant Jain. This second
application in Form TM-24 pertains to assignment/transfer of all the
four trademark Nos. 376224, 384556, 463530 & 486516 in the
names of Mr. Arihant Jain and Mr. Vishwa Jain and their families
being partners in M/s Kangaro Industries (Regd.) and M/s Kanin
(India). The transfer/ assignment was asked for on the basis of
change in the constitution of these firms as per retirement deeds
and new partnership deeds dated 31st March/1st April, 1995 and the
retirement deed dated 15.05.1995 and new partnership deed dated
16.05.1995.
15 Similarly on 28.02.1996 an application in Form TM-24 was also
filed by Mr. Janki Dass Jain, Mr. Jaininder Jain and Mrs. Kiran Jain for
recording them as registered proprietors of T.M. No. 486510 that
stood registered in favour of the firm M/s Jain Manufacturing
Company. The basis of their Form TM-24 was also the retirement
deeds/partnership deeds as relied by the Arihant Group.
16 On 20.08.1996, Mr. P.K. Talwar, Advocate for Mr. Janki Dass
Jain and Mrs. Kiran Jain sent a letter to the Registrar, Trademarks
stating that the trademark matter between the retiring and the
continuing partners of M/s Kangaro Industries (Regd.) has not been
decided finally and therefore the Registrar was asked not to allow
any change in the constitution of firm M/s Kangaro Industries
(Regd.) till his clients were heard in the matter. On 02.09.1996 Mr.
K.N. Naik, Advocate of Mr. Arihant Jain etc. sent a letter to the
Registrar, Trademarks along with an affidavit of Mr. Arihant Jain
stating that the retiring partners of M/s Kangaro Industries (Regd.)
have relinquished their rights after receiving their shares from the
partnership business. The said affidavit was supported by copy of
ledger account of the retiring partners certified by the Chartered
Accountant, certificate from the bank confirming payments made to
the retiring partners and the Registrar, Trademarks was requested
to allow their Form TM-24 and record assignment/transfer of
trademark 'KANGARO' in the name of continuing partners (Mr.
Arihant Jain, Mr. Vishwa Jain, Mrs. Raman Jain and Mrs. Neelam Jain)
of M/s Kangaro Industries (Regd.).
17 On 25.09.1996, the Registrar, Trademarks in reply to letter of
Mr. P. K. Talwar, Advocate requested him (Mr. P.K. Talwar) to
furnish the supportive documents within 21 days from the date of
the said letter. The copy of the said letter was also sent to Mr. K.N.
Naik, Advocate and also to Mr. Arihant Jain etc. On 18.10.1996, the
Registrar, Trademarks received a letter from Mr. K.N. Naik,
Advocate on behalf of Mr. Arihant Jain etc. in response to its letter
dated 25.09.1996 requesting the Registrar, Trademarks to take
necessary action on Form 24 in case no reply is received from Mr.
Jaininder Jain etc. by the Registry and in the absence of any proof
furnished by them. Since no reply was received by the Registrar
either from Mr. Jaininder Jain or from counsel in spite of lapse of 21
days, the Registrar on 30.10.1996 decided the case of Form TM-24
in respect of four trademark Nos. 376224, 384556, 463530 &
486516 in favour of Mr. Arihant Jain etc. trading as M/s Kangaro
Industries (Regd.).
18 Immediately after passing of order dated 30.10.1996 by the
Registrar, Trademarks allowing Form TM-24 of Mr. Arihant Jain etc.
in regard to above referred four trademarks, Mr. Jaininder Jain etc.
group became active and started protesting against the order
passed by the Registrar, Trademarks on 30.10.1996. On
01.11.1996, Mr. P.K. Talwar, Advocate sent a telegram to the
Registrar, Trademarks and asked him not to allow Form TM-24 of
Mr. Arihant Jain etc. On 04.11.1996, the Registrar, Trademarks
passed the following order:-
"Telegram from Mr. P.K. Talwar, Advocate has been
received at 4 PM on 01.11.1996. This telegram is sent in
response to this office letter dated 25.09.1996. Since the
abovenamed Advocate has failed to comply with the official
requirement within stipulated period, no further
correspondence is required to be made with him. However
to provide full natural justice, other parties may be given a
chance to furnish necessary documentary evidence in
support of their claim. 30 days time to be given for
compliance, failing which no further correspondence had to
be entertained.
This case was dealt by me hence Ld. C.G. has directed
me to put up.
Sd/.
04.11.1996'
19 While the objections of Mr. Jaininder Jain etc. against the order
of Registrar dated 30.10.1996 were pending consideration before
the Registrar, litigation started between the parties in December,
1996.
20 On 06.12.1996 Mr. Jaininder Jain etc. (hereinafter to be
referred to as the 'Jaininder group') filed a civil suit in the Court at
Ludhiana. This suit was filed for grant of a decree of declaration
that the parties are bound by the terms and conditions made under
the family arrangement dated 10/14.04.1995 and permanent
injunction restraining the defendants (Mr. Arihant Jain etc.) from
getting the trademark 'KANGARO' transferred in their favour or in
favour of any other firm falling to their share in the family
arrangement dated 10/14.04.1995 and restraining them from
selling, manufacturing, exhibiting and advertising in any manner
the said trademark. This suit is CS(OS) No. 156/2004 in this Court.
21 On 17.01.1997 Mr. Arihant Jain, Mr. Vishwa Jain, Mrs. Raman
Jain and Mrs. Neelam Jain (hereinafter to be referred to as the
'Arihant group') also filed a suit in the Court of Additional District
Judge, Ludhiana for permanent injunction restraining Jaininder
group from using the trademark "KANGARO'. This suit is CS(OS)
No.157/2004 before this Court.
22 On 10.02.1997, the Jaininder group filed a rectification petition
being C.O.4/1997 in this Court under Section 56 of the Trade and
Merchandise Marks Act, 1958 for removal of entry made by the
Registrar of Trademarks on 30.10.1996. In the said rectification
petition, the Jaininder group raised dispute regarding recordal of the
names of Arihant group as continuing partners of reconstituted firm
M/s Kangaro Industries (Regd.) by the Registrar vide order dated
30.10.1996. The Jaininder group also claimed that their names
should be recorded as subsequent registered owners of the
trademark registered in favour of partners of M/s Kangaro Industries
(Regd.) in view of family settlement dated 10/14.04.1995.
23 Before the Registrar could decide the objections against the
order dated 30.10.1996, the Registrar was informed by the
Jaininder group to keep his hands off as a civil suit had been filed
before the District Court of Ludhiana.
24 On 30.03.1998, Mr. Jaininder Jain's wife Ms. Kiran Jain filed a
suit in Ludhiana Court {CS (OS) No. 155/2004 in this Court} for
declaration that there has been a family arrangement dated
10/14.04.1995 settling the dispute between the parties and in the
alternative, she also prayed that she may be declared to be a
continuing partner in M/s Kangaro Industries (Regd.). She further
prayed for dissolution of partnership firm M/s Kangaro Industries
(Regd.) and for permanent injunction restraining Ms. Neelam Jain
and Mr. Vishwa Jain from carrying on the business in the name and
style of M/s Kangaro Industries (Regd.) and for rendition of
accounts.
25 All these suits filed by the parties against each other in the
Court at Ludhiana were accompanied with an application for interim
injunction seeking an injunction against each other from using the
trademark 'KANGARO'. The Court at Ludhiana passed an interim
order in CS(OS) No. 156/2004 on 07.01.1997 and directed the
parties to maintain status quo regarding the use of trademark
'KANGARO' by them.
26 All the three suits as per details whereof given hereinabove,
filed by the parties against each other in Ludhiana Court were
transferred to this Court vide order dated 08.09.2003 passed by the
Hon'ble Supreme Court in Transfer Petition (Civil) No. 198-203/2003.
Subsequent to their transfer from Ludhiana Court to this Court,
these suits have been registered as CS(OS) Nos. 155/2004,
156/2004 & 157/2004.
27 In the rectification petition being C.O. No. 4/1997, an
application for interim injunction was filed by the Jaininder group
seeking stay of operation of the order of the Registrar, Trademarks
dated 30.10.1996 whereby the names of Mr. Arihant Jain, Mr.
Vishwa Jain, Mrs. Raman Jain and Mrs. Neelam Jain trading as M/s
Kangaro Industries (Regd.) were recorded as subsequent registered
proprietors of Trade Mark Nos. 376224, 384556, 463530 & 486516.
It was further prayed in the application that the said partners of the
firm be restrained from using the entries of registered trademarks
made in their favour in any other proceedings.
28 The said application being IA No. 1397/1997 was dismissed by
a reasoned order passed by the Single Judge of this Court on
01.05.1997 {reported as 2004 PTC (29) 157}. It was observed by
the Single Judge that the retirement of Mr. Janki Dass Jain and Mrs.
Kiran Jain as well as the fact of their having received large sums of
money in consideration thereof was admitted by the Jaininder
group. The alleged family settlement relied upon by Jaininder group
was considered to be a disputed document and interim injunction
application filed by them was dismissed by the Single Judge vide
order dated 01.05.1997 holding that the fair opportunity of hearing
was granted by the Registrar before recording the names of the
subsequent registered proprietors.
29 Aggrieved by the order passed by the Single Judge dated
01.05.1997 dismissing their interim injunction application, the
Jaininder group filed an appeal being FAO(OS) No.130/1997 before
the Division Bench of this Court who by its reasoned order dated
10.05.2002 dismissed the appeal and confirmed the order of the
Single Judge. This order of the Division Bench is reported in 2004
PTC (29) 160. The Division Bench did not find any infirmity in the
order passed by the Registrar or by the Single Judge. It was held
that the question as to whether the document purported to be a
family settlement relied upon by the Jaininder group is in the nature
of family settlement or mere proposal and also the legality and
validity of the said document were held to be disputed questions
required to be proved in accordance with law in the civil suits
transferred from Ludhiana Court to this Court.
30 The Jaininder group being dissatisfied with the order of the
Division Bench of this Court dated 10.05.2002, preferred a Special
Leave Petition being SLP (Civil) No.17535/2002 before the Supreme
Court of India, which was also dismissed on 08.09.2003. The order
of the Hon'ble Supreme Court dismissing the SLP is reported in 2004
(29) PTC 174 (SC).
31 It may be noted that while the appeal against the order of the
Single Judge was pending before the Division Bench, the civil suit
filed by the parties against each other did not proceed because of
assurance given by the parties to the Division Bench that they will
not proceed with their suits pending hearing of the appeal.
32 Thereafter, vide order passed by this Court on 05.10.2005, all
the three suits referred above filed by the parties against each
other were consolidated and were ordered to be heard and decided
along with the rectification petition filed by the Jaininder group
being C.O.4/1997. Consolidated issues were also framed in all these
cases on 05.10.2005.
33 The dispute between the parties relate to use of mark
'KANGARO' coined and founded by their late father Mr. Janki Dass
Jain. Mr. Janki Dass Jain being the creator of the said mark has
expired during the pendency of proceedings of these suits on
17.02.2005. The family of late Mr. Janki Dass Jain is split into two
groups. Mr. Jaininder Jain, his wife and son represent one group
(Jaininder group) whereas Mr. Arihant Jain, Mr. Vishwa Jain their
wives and children represent the other group known as Arihant
group. There appears to be a serious dispute between them for
over a decade about the use of mark 'KANGARO' by each one of
them for different items of stationary manufactured and marketed
by them. Both of them claim a right to use the mark 'KANGARO' and
have prayed for interim injunction against each other from using
the mark 'KANGARO'.
34 I have heard the arguments of learned counsel for both the
parties and have also gone through their written synopsis and the
entire material available on record.
35 The trademark 'KANGARO' is a well-known trademark in the
line of stationery items and this mark appears to have international
reputation. The fight over the use of this mark for different items of
stationery is between three real brothers. Two brothers, namely,
Mr. Arihant Jain and Mr. Vishwa Jain, are on one side and the third
brother Mr. Jaininder Jain is on the other side. The mark 'KANGARO'
is the creation of their late father, Shri Janki Dass Jain who had
adopted and started using the said mark since 1959 and
thereafter, several firms and companies were formed in which the
family members of late Janki Dass Jain were either partners or
Directors. Five registrations in respect of trademark 'KANGARO'
were obtained on different dates, four were got in the name of the
firm M/s. Kangaro Industries (Regd.) and one mark was obtained in
the name of the firm, M/s. Jain Manufacturing Company.
36 Details of four registrations of mark 'KANGARO' obtained in
the name of firm M/s. Kangaro Industries (Regd.) are as under :-
REGISTERED CLASS GOODS DATE OF
TRADE MARK REGISTRATION
NO.
376224 16 Paper Punches and 25.05.1981
Board Clips
384556 16 Staple Presses 23.12.1981
(Office use) and
other staples thereof
463530 07 Punching Machine 24.11.1986
486516 08 Hand Tools 26.02.1988
37 The details of the fifth registration mark obtained in the name
of the firm M/s. Jain Manufacturing Company are as under :
REGISTERED CLASS GOODS DATE OF
TRADE MARK REGISTRATION
NO.
486510 16 Index File Clip 26.02.1988
38 Because of inter se dispute amongst the three brothers
relating to their business carried on by them in the name of three
firms, namely, i) M/s. 'KANGARO' Industries (Regd.); ii) Kanin (India);
and iii) M/s. Jain Manufacturing Company, an agreement dated 20th
March, 1992 was arrived at between these three firms and as per
the said agreement, the firm M/s. Kangaro Industries (Regd.) was
given the right to use the mark 'KANGARO' for paper punches and
board clips; the firm M/s. Kanin (India) was given the right in
respect of staplers, staple pins and staple pin removers and the
firm M/s. Jain Manufacturing Company was given the right to use
the mark 'KANGARO' for manufacturing and marketing index file
clips and base plates thereof.
39 It seems that in order to further streamline the business
carried on by the three brothers with their wives and children along
with their late father Shri Janki Dass Jain in the names of above
mentioned three firms, the three brothers decided to have
complete control over the affairs of one firm each and since the two
brothers Shri Arihant Jain and Shri Vishwa Jain decided to remain
together, on or around 31st March, 1995, the two firms namely M/s.
Kangaro Industries (Regd.) and the firm M/s. Kanin (India) went to
their exclusive share whereas the firm M/s. Jain Manufacturing
company came to the share of the third brother, Mr. Jaininder Jain
and his family. Consequent thereto, retirement deeds and new
partnership deeds were executed between the incoming and
outgoing partners of these three firms on 31st March, 1995/1st April,
1995. The father of the three brothers, Late Shri Janki Dass Jain,
who continued to remain partner in M/s. Kangaro Industries (Regd.)
at the time of this change, also retired from the firm M/s. Kangaro
Industries (Regd.) on 15.05.1995 and consequent thereto, a
retirement deed dated 15.05.1995 and a new partnership deed
between the continuing partners of the said firm was executed on
16.05.1995.
40 After change in the constitution of the three firms mentioned
above was brought about around 31.03.1995/01.04.1995, the three
brothers on persuation of their late father Shri Janki Dass Jain
entered into an arbitration agreement on 10.04.1995 and agreed to
refer their dispute regarding land, building and machinery owned
by these firms to the arbitration of Shri Ram Kumar Jain and Shri Raj
Kumar Behal. A document dated 10/14th April, 1995 was prepared
which bears the signatures of all the three brothers as also of both
the arbitrators, Shri Ram Kumar Jain and Shri Raj Kumar Behal.
41 The document dated 10/14th April, 1995 is admittedly in the
handwriting of Mr. Arihant Jain. However, there exists a dispute
between the three brothers, hereinafter to be referred to as 'Arihant
Group' and 'Jaininder Group' about the legality, validity and
enforceability of document dated 10/14th April, 1995 purported to
be a family settlement. The Arihant Group has disputed the
authenticity of the document dated 10/14th April, 1995 stating that
the said document according to them was in eight sheets whereas
according to the Jaininder Group, the document, they are relying, is
only in six sheets. The Arihant Group in support of its contention
that the document purported to be a family settlement, is in eight
sheets has relied upon the affidavits of the arbitrators namely Mr.
Ram Kumar Jain and Mr. Raj Kumar Behal (their affidavits are at
pages 38 and 49 of the convenience file of the Arihant Group) who
in their separate affidavits sworn by them before the notary public
on 09.07.2002 have deposed that the instrument dated 10/14th
April, 1995 was in eight sheets and was signed by all the three
brothers and also by both of them. On the other hand, Mr. Bhatia
learned counsel appearing on behalf of the Jaininder Group has also
referred and relied upon the affidavits of the same arbitrators sworn
by them before the notary public on 20.09.2002 to contend that the
instrument dated 10/14th April, 1995 has only six sheets. The
affidavits of the arbitrators relied upon by the Jaininder Group were
not placed on record earlier and they were filed by the learned
counsel for the Jaininder Group along with his short additional
submissions filed on 01.04.2009 after the arguments on interim
injunction application were concluded and the case was reserved
for orders.
42 Upon considering the fact of two contradictory affidavits filed
by the arbitrators regarding the number of sheets used for
preparing the document dated 10/14th April, 1995 purported to be a
family settlement, I am of the view that this raises a serious dispute
regarding the authenticity of the said document. Whether this
document was having six sheets or eight sheets is a question of
fact which cannot be decided at this initial stage in the absence of
evidence of the parties on this aspect. At this stage, what is
relevant to be noted is that photocopies of all the eight sheets of
document dated 10/14th April, 1995 purported to be a family
settlement is on record and is available at pages 39 to 48 of the
convenience file submitted by the Arihant Group. All the eight
sheets of this document are in the handwriting of Shri Arihant Jain.
The said document purports to contain two alternative proposals
which both have been signed by all the three brothers, their late
father Shri Janki Dass Jain and also by both the arbitrators.
Reference for the same can be made to pages 45 and 48 of the
convenience file of the Arihant Group. The two alternative
proposals, firmwise and productwise, mooted by the parties in the
presence of the arbitrators, are as follows :-
PROPOSALS
I. FIRMWISE :
PARTIES PROPOSAL I PROPOSAL II
Arihant Jain and -Kangaro Industries -Kangaro Industries
Vishwa Jain (Regd.) (Regd.) Unit II
-Kangaro Industries -Kangaro Industries
(Regd.) Unit II (Regd.)
- Kanin (India) -Jain Manufacturing
Company
-Jindal Stationery
Manufacturing Co.
-Kangaro (India) Pvt. Ltd.
- Kanin (India) Pvt. Ltd.
Jaininder Jain - Jain Manufacturing Co. - Kanin (India)
-Jindal Stationery
Manufacturing Co.
-Kangaro (India) Pvt. Ltd.
- Kanin (India) Pvt. Ltd.
II. PRODUCTWISE :
PARTIES PROPOSAL I PROPOSAL II
Arihant Jain and All types of paper punches All types of paper
Vishwa Jain and staplers except punches, stapler No. 10,
stapler HD-10N, HD-10D, 10B, HP-10, 10-JA, 45-L,
M-10, HP-45 and staple HP-45, M-10, staple
remover SR-300 remover and stapler HD-
12S/17
Jaininder Jain Index file clip and stapler Index file clip, HD-10N,
HP-45, M-10, Staple 10-D, HD-45, 555 and 999
remover SR-300, stapler
HD-10N and HD-10D
43 As per the first proposal contained in the document dated
10/14th April, 1995, the trade mark 'KANGARO' has gone to the
share of the Jaininder Group and the trade mark 'KANIN' has come
to the share of Arihant Group. The trade name 'KANGARO' has
gone to the share of Arihant Group and the trade name 'KANIN' has
come to the share of Jaininder Group. The second proposal
contained in the document, does not deal with the distribution of
either the trademark or the trade name as dealt with in the first
proposal.
44 Mr. Shailen Bhatia, learned counsel appearing on behalf of the
Jaininder Group has argued that the trademark 'KANGARO' is the
property of the joint family and the right in the said trademark does
not belong to any individual. He has placed heavy reliance on the
document dated 10/14th April, 1995 which according to him is a
family settlement regarding use of trademark 'KANGARO' for
different stationery items manufactured and marketed by the three
firms. The argument of Mr. Bhatia is that in terms of family
settlement dated 10/14th April, 1995 the trademark 'KANGARO'
exclusively belongs to the Jaininder Group and according to him,
the Arihant Group has no legal right to use the said mark in relation
to its stationery business. Mr. Bhatia has referred and relied upon
the pleadings of the Arihant Group contained in their two
applications, one under Section 34 of the Arbitration Act, 1940 and
the second under Section 8 of the Arbitration and Conciliation Act,
1996, filed for stay of suit of Jaininder Group being CS(OS) No.
156/2004. It was contended that the Arihant Group itself has relied
upon document dated 10/14th April, 1995 as a ground for stay of the
above referred suit of Jaininder Group. It was submitted that the
Arihant Group itself has stated in its applications under Section 34
and Section 8 that the parties had agreed to refer their remaining
unsettled disputes for the decision of the arbitrators whose decision
was agreed to be final and binding on all the three brothers. It was
further contended by Mr. Bhatia that this Court should not doubt
the document dated 10/14th April, 1995 which according to him is a
family settlement as the said document is admittedly in the
handwriting of Mr. Arihant Jain. His further contention was that in
case, the said document had eight sheets and not six sheets, then
why Arihant Group did not produce the original of the last two
missing sheets which contained an alternative proposal allegedly
given by the Arihant Group.
45 Mr. Bhatia learned counsel appearing on behalf of the
Jaininder Group has referred and relied upon the judgments of the
Hon'ble Supreme court in K.K. Modi versus K.N. Modi & Ors., 1998
(3) SCC 573; Ram Kishore Lal & Anr. Versus Kamal narayan & Ors.
AIR 1963 SC 890 and RamCharan Dass Versus Girija Nandini Devi
AIR 1966 SC 323, in support of his contention that the family
settlement arrived at by the parties to this suit by way of document
dated 10/14th April, 1995 should not be lightly interfered by this
Court because according to him, the settlement has already been
acted upon by some of the members of the family.
46 On the other hand, Mr. Sudhir Chandra Aggawal, learned
senior counsel, appearing on hehalf of the Arihant Group has
argued that the document dated 10/14th April, 1995 was not a
family settlement and according to him, this document contains
only two alternative proposals, one given by the Jaininder Group
and the other by the Arihant Group. He responded to the argument
of Mr. Bhatia regarding non-production of the originals of two
missing sheets by the Arihant Group by submitting that the original
of document dated 10/14th April, 1995 (eight sheets) was in fact
retained by the arbitrators with themselves and the parties were
given only the photocopies of the said document. The learned
senior counsel for the Arihant Group in support of his above
contention has relied upon the admission of Jaininder Group in its
written statement filed on 24.01.1997 in CS(OS) No. 157/2004
where in para 2 of its written statement, the Jaininder Group has
admitted that the original of document dated 10/14th April, 1995
was retained by the arbitrators in their possession. It was further
contended that the document dated 10/14th April, 1995 cannot be a
family settlement because it contains two alternative proposals,
and the document does not state as to which out of these two
proposals, were finally accepted by the parties.
47 The contention of the learned senior counsel appearing on
behalf of the Arihant Group was that the rights of the parties, i.e., of
Arihant Group and of Jaininder Group to use the trade mark
'KANGARO' in relation to different items of staitonery manufactured
and marketed by different firms/companies flow from the
partnership deeds and the retirement deeds executed between the
incoming and outgoing partners of the three firms during 1995.
48 The Arihant Group and the Jaininder Group also have dispute
between them about the nature of agreement dated 20.03.1992.
Mr. Bhatia appearing on behalf of the Jaininder Group had argued
that the agreement dated 20.03.1992 was an agreement between
the three brothers whereby all three of them decided to represent
one firm each. However, the argument of the Arihant Group is that
the agreement of 20.03.1992 was an agreement between the three
firms to streamline their business and in terms of the said
agreement, the goods were divided and demarcated between
Kangaro Industries (Regd.), Kanin (India) and Jain Manufacturing
Company. It was submitted that the three firms, on restructuring,
were taken over by the respective continuing partners, with all
assets, property and goodwill. It was only for this reason that
registered trade mark 'KANGARO' registered under No. 486510 for
index file clips was acquired by Jain Manufacturing Company.
49 I have given my anxious consideration to the above rival
arguments advanced by learned counsel for the parties. I do not
find any merit in the argument of the counsel for the Jaininder
Group that the property in the trademark 'KANGARO' belongs to a
joint family and not to the individual family members. It may be
noted that the constitution of the three partnership firms was
changed from time to time when ultimately, around first half of
1995, the two firms namely M/s. Kangaro Industries (Regd.) and
M/s. Kanin (India) came to the exclusive share of the Arihant Group
whereas the third firm M/s. Jain Manufacturing Company went to
the share of Jaininder Group.
50 I also do not find any merit in the argument of Mr. Bhatia that
the agreement of 20.03.1992 was between the three brothers inter
se and not between the three firms of which either they themselves
or their wives were partners. The Jaininder Group in fact has
admitted in its written statement in CS(OS) No. 157/2004 that the
agreement dated 20.03.1992 was between the three firms, namely,
M/s. Kangaroo Industries (Regd.), Jain Manufacturing Company and
M/s. Kanin (India). This admission on the part of the Jaininder Group
in its written statement belies their stand that the agreement dated
20.03.1992 was between the brothers inter se and not between the
firms. It appears that an attempt is made on the part of the
Jaininder Group to show as if the business done by the three
brothers in the name of the three firms was a joint family business
and they vide their agreement dated 20.03.1992 had simply
decided as to which firm in which they were partners will deal in
what item. It is a matter of record that four registrations in respect
of trademark 'KANGARO' vide registration no. 376224, 384556,
463530 and 486516 were obtained on different dates in the name
of the firm M/s. Kangaro Industries (Regd.) in which the wife of Shri
Jaininder Jain also remained one of its partners till 31.03.1995. On
account of dispute between the parties in relation to their business
carried on by them in the name of three firms, the parties had
agreed to separate the control and management of all the three
firms so that each of these three firms could be exclusively
controlled by one or the other group. Pursuant thereto, the firms
Kangaro Industries (Regd.) and M/s. Kanin (India) came to the share
of Arihant Group whereas the Jain Manufacturing Company went to
the share of Jaininder Group. This was in the year 1995.
Retirement deeds and new partnership deeds were executed
between the incoming and outgoing partners of all the three firms
in March/April, 1995 and again on 15.05.1995. As per these
partnership deeds/retirement deeds, the Jaininder Group acquired
right in the trademark 'KANGARO' for different items of stationery
covered by the four registrations being registration no. 376224,
384556, 463530 and 486516 and the Jaininder Group acquired the
right in the trademark registered as per registration no. 486510 in
Class 16 for index file clips and base plates registered in favour of
Jain Manufacturing Company.
51 The Jaininder Group is relying upon the document dated
10/14th April, 1995 which according to it is a family settlement in
terms whereof the trademark 'KANGARO' exclusively belongs to
them. A serious dispute exists between the parties about the
genuineness and authenticity of the said document. The said
document purports to contain two alternative proposals which are
both inconsistent to each other. The document does not state as to
which out of the two proposals was agreed to be treated as final
and binding by the parties. The contention of the Jaininder Group,
that since the Arihant Group itself has admitted in its applications
under Section 34 of the Arbitration Act, 1940 and application under
Section 8 of the Arbitration and Conciliation Act, 1996 that the
parties vide their agreement dated 10/14th April, 1995 had agreed
to refer their remaining unsettled disputes to the arbitrators, and
therefore, the Arihant Group cannot be permitted to wriggle out of
its admission to dispute the genuineness of the family settlement,
seems to hold no water. The Jaininder Group does not dispute the
existence of document dated 10/14th April, 1995. What it disputes
is the nature of the said document, whether the document is a
family settlement or merely a proposal. Hence, the stand taken by
the Arihant Group in their application under Section 34 of the Indian
Arbitration Act, 1940 and application under Section 8 of the
Arbitration & Conciliation Act, 1996 regarding existence of an
agreement cannot be taken in aid by the Jaininder Group to say
that the document relied upon by them is a family settlement.
The mere fact that the said document is in the handwriting of Mr.
Arihant Jain is also of no help to Jaininder Group because mere
admission of handwriting of a document does not ipso facto amount
to proof of its contents, particularly when the nature of the said
document is in dispute.
52 In Ramji Dayawal & Sons (P) Ltd. Vs. Invest Import, AIR 1981
SC 2085, it was held by the Hon'ble Supreme Court as under :-
"Undoubtedly, mere proof of the handwriting
of a document would not tantamount to proof
of all the contents of the facts stated in the
document. If the truth of facts stated in a
document is in issue, mere proof of the
handwriting and execution of the document
would not furnish evidence of the truth of the
facts or contents of the document. The truth
or otherwise of the facts or contents so stated
would have to be proved by admissible
evidence, i.e., by the evidence of those
persons who can vouchsafe for the truth of the
facts in issue."
53 In view of the above judgment of the Supreme court, I have no
hesitation in saying that the document dated 10/14th April, 1995
relied upon by the Jaininder Group at this stage cannot be said to
be a family settlement only because the said document happens to
be in the handwriting of Mr. Arihant Jain. There is a serious dispute
between the parties, whether this document was in eight sheets or
in six sheets. If the document relied upon by the Jaininder Group is
found to have eight sheets, then another question will arise as to
why two alternative inconsistent proposals were made in the said
document, if it was to be treated as a family settlement, final and
binding on the parties.
54 The document dated 10/14th April, 1995 relied upon by the
Jaininder Group as a family settlement is further shrouded in
suspicion. If a final settlement has been arrived at between the
parties regarding use of trademark 'KANGARO' by each one of them
for different stationery items, then why this fact was not reflected in
the retirement deed dated 15.05.1995 executed on the retirement
of Shri Janki Dass Jain. This fact of alleged family settlement was
not even mentioned in the new partnership deed dated 16.05.1995
executed between the continuing partners of the firm M/s. Kangaro
Industries (Regd.). It may be noted that the retirement deed dated
15.05.1995 as well as new partnership deed dated 16.5.95 were
executed shortly just within one-two days of the purported family
settlement dated 10/14th March, 1995. The things were fresh in the
mind of the parties at the time they had executed the retirement
deed/partnership deed in May, 1995 and in case there was any
conclusive family settlement with regard to use of trademark
'KANGARO' then this fact must have find mentioned in the said
documents. It may further be noted that the Jaininder Group had
filed TM 24 in the office of Registrar, Trademarks on 28.02.1996 for
recordal of change of proprietorship of trademark no. 486510 in
favour of continuing partners of M/s. Jain Manufacturing Company.
This TM 24 was filed by the Jaininder Group on 28.02.1996 on the
basis of retirement deed/partnership deed dated
31.03.1995/01.04.1995 and 15.05.1995/ 16.05.1995. without any
whisper about the alleged family settlement. In case, the alleged
family settlement was arrived at between the parties as contended
by the Jaininder Group, then why this fact was not disclosed by this
group while filing TM 24 ,filed after about 9 months of the alleged
family settlement. The fact of alleged family settlement was not
even disclosed in the letter dated 19.08.1996 sent by Shri P.K.
Talwar (Advocate for Shri Janki Dass Jain and Mrs. Kiran Jain) to the
Registrar, Trademarks. Furthermore, it may also be noted that the
firm M/s. Jain Manufacturing Company of which Mr. Janki Dass Jain,
Mrs. Kiran Jain and Mr. Jaininder Jain were partners, admitted before
the Excise authorities in the year 1997 that the Jaininder Group is
proprietor of trademark 'KANGARO' for which they hold
registrations. M/s. Jain Manufacturing Company claimed right to
trademark 'KANGARO' only for 'index file clips' as subsequent
proprietors of trademark no. 486510 in terms of agreement of
1992. All these facts prima facie create a serious doubt on the
nature, legality and validity of the document invoked by the
Jaininder Group as document of the family settlement.
55 The purported family settlement dated 10/14th April, 1995
even otherwise does not prima facie appear to be admissible in
evidence in view of the provisions of the Indian Registration Act,
Stamp Act and Section 45 of the Trade Marks Act, 1999. The said
document purports to create or extinguish right in the immovable
property and was, therefore, required to be executed on non-
judicial stamp papers and also required compulsory registration.
The alleged agreement of family settlement is pursuant to an
arbitration agreement of 10th April, 1995 to which all the partners of
the three firms, are not parties. In view of provisions contained in
Section 19 of the Partnership Act, one partner cannot effect transfer
of partnership assets in the absence of express or implied consent
of the other partners. Since this document purported to be a family
settlement does not bear the signatures of all the partners of the
three firms, the said document prima facie appears to be not
tenable in law.
56 In view of what has been discussed by me above, I am of the
view that the above referred judgments on the point of family
settlement relied upon by counsel for the Jaininder Group are not
applicable to the facts and circumstances of the present case
because in all those cases, the family settlement considered by the
Court was not in dispute whereas in the present case, the alleged
family settlement is shrouded in strong suspicion.
57 The learned senior counsel appearing on behalf of the Arihant
Group has referred and relied upon an order dated 30.10.1996
passed by the Registrar, Trade Marks allowing TM 24 of the Arihant
Group in regard to four registrations of trademark 'KANGARO' being
registration nos. 376224, 384556, 4365380 and 483516 and
recorded the Arihant Group as proprietors of the trademark vide
these registrations on the basis of retirement deed/partnership
deed of 31.03.1995/01.04.1995 and 15/05/1995/16.05.1995. The
argument of the learned senior counsel for the Arihant Group was
that the Arihant Group being the registered proprietor of trademark
'KANGARO' as per the above referred registration nos., the said
group has a statutory right to protect its registration in view of
provisions contained in Section 28, 29 31 and 135 of the Trade
Mark Act, 1999. It was submitted that the use of an identical
deceptively similar mark by anybody which even includes Jaininder
Group also, constitutes an act of infringement and, therefore, the
Jaininder Group is liable to be restrained from using the trademark
'KANGARO' in respect of goods covered by the registrations in its
favour referred above.
58 On the other hand, Mr. Bhatia, learned counsel appearing on
behalf of the Jaininder Group has argued that the order dated
30.10.1996 was procured by the Arihant Group from the Registrar,
Trademarks by concealing the fact of family settlement and also by
not filing the affidavits of the retiring partners of M/s. Kangaroo
Industries (Regd.) that they have relinquished their right in the use
of trademark 'KANGARO' in favour of the continuing partners of the
said firm, as is the established practice in the trade mark registry.
The Jaininder Group has pleaded fraud against the Arihant Group in
regard to order dated 30.10.1996 of the Registrar, Trademarks. Mr.
Bhatia has relied upon a decision of this Court in Anand Kumar
Deepak Kumar & Another Versus Haldi Ram Bhujiawala &
Anr. 1999 PTC (19) 466 to buttress his argument that the fraud
vitiates all transactions and that the registration of trademark
obtained by fraud would not acquire finality or immunity from
challenge under Section 32(a) of the Trade and Merchandise Marks
Act, 1958.
59 Mr. Bhatia has also argued that the order dated 30.10.1996
recording the Arihant Group as registered proprietor of trademark
'KANGARO' is even otherwise violative of the principles of natural
justice and fair play. In support of his said contention, he has relied
upon another judgment of this Court in Kohinoor Paints
Faridabad (P) Ltd. Versus Paramveer Singh 1996 PTC (16)
69, wherein it is held as under :-
"it is well-settled that once an order is passed in
violation of the principles of natural justice, the order is void
in law and if that order is relied upon for any purpose, it can
be challenged whenever and wherever it is produced."
60 I have given my anxious consideration on the plea of fraud
and violation of principles of natural justice in regard to order dated
30.10.1996 urged on behalf of the Jaininder Group but on giving my
anxious consideration to the same, I have not been able to
persuade myself to agree with the submissions made on behalf of
Jaininder Group in regard to the above. The judgment on these
aspects relied on its behalf are not applicable to the facts of the
case. The court at this stage is only considering which party has a
prima facie case for restraining the other party from using the
trademark 'KANGARO' for different stationery items covered vide
registration no. 376224, 384556, 463530 and 486516.
61 The question regarding legality, validity and enforceability of
the purported family settlement dated 10/14th April, 1995 has been
considered upto the Supreme Court. Right upto the Supreme Court,
the courts have declined to stay the operation of order of Registrar,
Trademarks, dated 30.10.1996. Detailed reasons for the same are
given in the judgments both of the single judge and also of the
division bench. Right upto the Supreme Court all the arguments
which have been advanced on behalf of the Jaininder Group in
support of the family settlement dated 10/14th April, 1995 have
been considered and held that it cannot be said that the order
dated 30.10.1996 recording the Arihant Group as registered
proprietor of trademark registration no. 376224, 384556 463530
and 486516 was passed without giving fair opportunity to the
Jaininder Group. It has also been held upto the Supreme Court that
the document purported to be a family settlement is a disputed
document and its legality, validity and enforceability is to be
established by the Jaininder Group in accordance with law in these
suits. Reference for the orders of the Single Judge, the Division
Bench and of the Supreme Court may be made to PTC 2004 Volume
(29) at pages 157, 160 & 174 respectively. In this view of the
matter, I am of the considered opinion that the alleged family
settlement relied upon on behalf of the Jaininder Group cannot be
acted upon at this stage for deciding the interim injunction
applications in these three suits.
62 What emerges from the above discussion is that the Arihant
Group as on date holds a valid registration of trademark 'KANGARO'
in its favour in respect of goods covered by trademark nos. 376224,
384556, 463530 and 486516. The Arihant Group is shown to hold
registration of trademark 'KANGARO' in 37 countries. The Arihant
Group is stated to have acquired an international reputation in the
trademark 'KANGARO'. The foreign courts of Germany, Israel and
Indonesia have recognized the trademark 'KANGARO' of the Arihant
Group in infringement action set up by it against third parties and in
one case, before the three-Judge bench of the Frankfurt Court, the
Arihant Group had brought an infringement action against the
company owned by the Jaininder Group in which also the Jaininder
Group in its defence had relied upon the same family settlement of
10/14th April, 1995 but the three-Judge Bench of the Frankfurt Court
vide its detailed judgment delivered on 19.11.2003 declined to
recognize the said family settlement and prohibited the Jaininder
Group from using the trademark 'KANGARO' for paper punches,
staplers, staple removers and paper pins. The judgment of the
Frankfurt Court is reported in PTC 2004 Volume (29) at page 201.
63 For the foregoing reasons, I have no hesitation in holding that
the Arihant Group has made out a strong prima facie case for
restraining the Jaininder Group from using the trademark
'KANGARO' in relation to its business in respect of goods covered by
trademark nos. 376224, 384556, 463530 and 486516. The balance
of convenience for grant of such injunction also lies in favour of the
Arihant Group and against the Jaininder Group. In case, the
Jaininder Group is not restrained by way of interim injunction from
using the trademark 'KANGARO' in relation to its business in respect
of goods covered by trademark no. 376224, 384556, 463530 and
486516, the Arihant Group who has acquired an international
reputation in the use of the said trademark, is likely to suffer an
irreparable injury which is unlikely to be compensated in terms of
money. I, therefore, restrain the Jaininder Group from using the
trademark 'KANGARO' for stationery items covered by trademark
no. 376224, 384556, 463530 and 486516 till the final decision of
these suits. Any observation made in this order will not influence
the final decision of the case on merits.
64 In view of the above, IA No. 2552/2004 in CS(OS) No.
155/2004 & IA No. 2551/2004 in CS(OS) No. 156/2004 are
dismissed and IA No.2550/2004 in CS(OS) No. 157/2004 is allowed.
Needless to state that the status quo order dated 07.01.1997
passed by the Ludhiana Court in CS(OS) No. 156/2004 stands
vacated and that the right of the parties to the suit for use of
trademark 'KANGARO' will be governed in terms of injunction order
passed by this Court in favour of Arihant group and this interim
order will continue without prejudice to the rights and contentions
of the parties on merit of the case till the suits are finally decided.
April 08, 2009 S.N.AGGARWAL
a/ma [JUDGE]
