TMI Blog1981 (10) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... und of pendency of rectification proceedings in respect of the plaintiffs trademarks. 2. Parties have been manufacturing and marketing sewing machines with the identical trademarks 'Sainik' and 'Harsha'. Parties are at variance as to whose user has been earlier in point of time to the other. Parties are, however, agreed that both the parties are registered users of the trademarks, the use and registration of the trademark 'Sainik', in favour of defendant, being confined to the State of Rajasthan. Parties also assail the validity of the registration of each other in respect of both the marks and are agreed that proceedings for rectification, at the instance of both the parties, are pending before the Registrar as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endency of rectification proceedings and the second is, if the defendant should be restrained from the use of the two trademarks in relation to sewing machines as an interim measure and alternatively, if any other appropriate order be made to do justice between the parties during the pendency of the suit. 4. As for the question of stay, the position appears to be quite simple. Both the parties are registered owners of the identical trademarks. The trademarks in favour of one are under challenge by the other. Rectification proceedings in respect of the registration of the trademark 'Sainik' in favour of the plaintiff were pending before the Registrar of Trademarks, New Delhi, even before the institution of the suit and the factum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wspaper and no deliberate act of the defendant could be said to be committed within this jurisdiction. If the newspaper had wider publication or was freely sold in other jurisdictions or if the defendant had given the insertion with the intention of a wider publicity, the position would have been different On the existing material, prima facie, it would be doubtful if this Court would have jurisdiction to deal with this cause of action. 6. That apart, there are other reasons which would disentitle the plaintiff to the injunction. Plaintiff had initiated criminal prosecution against the defendant, which had been pending since 1975. The protection by a restraint order was sought by the plaintiff after a lapse of almost six years from the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the aforesaid notice and of the pendency of criminal proceedings since 1975 and the representation by the plaintiff in the plaint that defendants had recently started the manufacture and marketing of machines with the offending marks was obviously a deliberate mis-statement. I A. 968/81 suffers from the same infirmity. 8. Even on the merits of the claim for an injunction, the most material factor is as to which of the two parties has been using the trademarks in question in relation to the goods earlier than the other. The material on the record on this aspect of the matter would also not justify any interference with the use of the trademarks by the defendant. As for 'Sainik', the plaintiff's predecessor had got it regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful use of the trademark 'Harsha' was not mentioned in the notice. That apart, defendants have placed on record not only the various newspapers in which they have been extensively advertising the mark but also the Bills for the period 1965 onwards which would appear to show that the defendants had been either manufacturing, marketing or dealing in sewing machines with this trademark since 1965. 10. Lastly, from the document filed by the plaintiffs, it appears that the plaintiff's marketing of the sewing machines under one or the other of the trademarks was confined to the Canteen Stores Department, while the defendants have a wider market, even though within the State of Rajasthan, for the machines bearing their rival tradema ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
