Suresh C. Jain vs Manoj Jain & Ors.
2010 Latest Caselaw 1685 Del

 *                    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     C.M. (Main) No.97 of 2009 & C.M. Appl. No.1711 of 2009

%                                                                            25.03.2010

         SURESH C. JAIN                                         ......Petitioner
                                       Through: Mr. Manav Kumar, Advocate.

                                            Versus

         MANOJ JAIN & ORS.                                        ......Respondents
                                       Through: Mr. U.S. Sharma, Advocate.

                                                       Date of Reserve: 12th March, 2010
                                                        Date of Order: 25th March, 2010

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?

                                      JUDGMENT

1. By this petition, the petitioner has assailed an order dated 11th August, 2008

whereby applications of the petitioner under Order VI Rule 17 and under Order I Rule 10

CPC were dismissed with cost.

2. The petitioner filed a suit claiming damages against Sh. Manoj Jain, M/s. Arora

Trading Company, Satya Electronics and Ashoka Electricals alleging violation of his

trade mark 'SHREE' on packaging material and advertisement. During pendency of the

petition, the petitioner made application for impleadment of Sh. Satish Kumar Arora,

proprietor of 'Jai Mata Industries' on the ground that Sh. Satish Kumar Arora was

manufacturing duplicate bulbs under the trade mark 'SHREE' by running Jai Mata

Industries which was owned by Sh. Satish Kumar Arora. It was also alleged that

Sh. Satish Kumar Arora was brother of proprietor of M/s. Arora Trading Company, who

was already a party to the suit.

3. Every infringement is a separate cause of action. There is no ban on brothers

doing different businesses. It is petitioner's own case that Sh. Satish Kumar Arora was

running a separate company in the name of Jai Mata Industries and was infringing the

trade mark of the petitioner. Thus the petitioner, if so advised, had a right to file a

separate suit against Sh. Satish Kumar Arora on the ground of infringement of its trade

mark and for damages, if any suffered. The petitioner by way of amendment under Order

VI Rule 17 CPC and by way of an application under Order I Rule 10 CPC cannot be

allowed to keep on adding different persons infringing its trade mark, in one suit. Every

person who infringes the trade mark gives rise to a separate cause of action and he cannot

be added as a defendant in a suit which is already pending against other infringer. The

trial court, therefore, rightly dismissed the application of the petitioner under Order I Rule

10 CPC.

4. There is another aspect of this case that Sh. Satish Kumar Arora, proprietor of Jai

Mata Industries had a trade mark 'KSHREE' registered in his name with Registrar of

Intellectual Properties. Against this registration of trade mark, the petitioner had moved

an application for removal of trade mark of Sh. Satish Kumar Arora and for rectification

of registration. This application was contested by Sh. Satish Kumar Arora and

Intellectual Property Appellate Board passed an order on the application of petitioner on

27th February, 2009 holding that Sh. Satish Kumar Arora has been using the trade mark

'KSHREE' at least from the year 1987 till the date of filing of application for registration

and from the date of application for registration till the date of filing application for

rectification. The application of the petitioner that the trade mark was registered without

bona fide intention to use the trade mark was baseless.

5. In view of this dismissal of application of the petitioner, the petitioner, prima facie

had no case of infringement against Sh. Satish Kumar Arora. The petitioner did not bring

this to the notice of the trial court in the applications under Order I Rule 10 CPC and

under Order VI Rule 17 CPC that he had already filed objections against registration of

the trade mark 'KSHREE' in the name of Sh. Satish Kumar Arora and also did not bring

it to the notice of the trial court that these objections were dismissed by a detailed

speaking order on 27th February, 2009. The petitioner continued with this petition despite

dismissal of the application.

6. This petition is liable to be dismissed with cost and is hereby dismissed with cost

of Rs.25,000/-.

SHIV NARAYAN DHINGRA J.

MARCH 25, 2010 'AA'