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1997 (5) TMI 440

ur,. 1. This appeal under Order 43 Rule 1(r) C.P.C. has been preferred by defendant No. 1 against the order dated 17-1-1992 of 1st Addl. District Judge, Ghaziabad by which the application 5-C filed by the plaintiff was allowed and the defendants, their dealers, stockists and distributors were restrained from infringing the plaintiff's copyright existing in art work, label and wrapper by using these as wrappers for Maingi's Todha. They were further restrained from passing off their goods as goods of plaintiff under trade mark Maingi's Todha. 2. M/s. Dodha, House, Kot Ka pura, through its partner Subhash Chandra Vig filed O. S. No. 22 of 1990 against Surendra Kumar Maingi, Proprietor of M/s. V. R. K. Todha Sweet House, Kot Ka Pura and Pallu Ram for permanent injunction restraining them from infringing plaintiffs copyright existing in the art work, label and wrapper duly registered under the Indian Copyright Act by using these in the art work involved in defendant's label and wrappers titled Maingi's Todha Sweet, from infringing the trade name Dodha House of the plaintiff by using the word Todha as part of defendant trade name and also from passing off their goods .....

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9;s Todha. The defendant No. 1 started his business under the aforesaid trade mark about 20 years back and his trade mark was very different from the plaintiff's trade mark "V.R.K. Dodha Sweet House, Kot Ka Pura". The word Todha is a description of sweet meat which cannot be property of an individual. The defendants' product is not in the market at Ghaziabad. It is denied that the trade mark/trade name/label/wrapper of the defendant is same as that of the plaintiff and there is any imitation of any kind. It is not likely to cause any deception or confusion in the normal course of business activity. There is no infringement of the plaintiffs trade mark or of the alleged art work, label or wrapper under the Copyright Act. The plaintiffs business is in no way affected by the sale of product made by the defendant. It is further pleaded that no part of cause of action had accrued at Ghaziabad and the Court at Ghaziabad had no jurisdiction to try the suit. The defendants also filed objection to the injunction application filed by the plaintiff on the same grounds which are set up in the written statement, 5. The parties filed affidavits in support of their respective ca .....

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lar from a distance but there is a mark difference in the middle with an eagle in the plaintiffs product and a round circle with a writing "VRK Todha Sweet House" in the defendants product. 7. I am in agreement with the submission of the learned counsel for the appellant that the similarity in the wrappers of the defendants with that of plaintiff is not such which may cause deception to customers. Learned counsel for the plaintiff-respondent has drawn the attention of the court to certain similarities in the two wrappers and has urged on its basis that a confusion is bound to arise in the mind of a customer. It is true that a circle has been shown with red colour towards the left side where the following is written- "Forget to eat but not Todha sweet." Similar language is written in the plaintiff's wrapper but the colour of the inner circle in the two wrappers is entirely different. In the plaintiff's wrapper it is of blue colour while in the defendants' wrapper it is of red colour. It may also be noticed that the plaintiffs' product is Dodha and the defendant product is Todha. Phonetically they may sound some what similar but there is difference .....

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9;s product under a mistaken belief that it is that of the plaintiff. 9. Learned counsel for the defendant-appellant has next submitted that Dodha is a name of particular variety of sweet and it cannot be property of an individual and therefore the defendant has infringed no law by marketing the sweet in the name and style of Maingi's Todha Sweet. Learned counsel for the plaintiff-respondent has however urged that 'Dhodha' is a special item which is made only by the plaintiff and it is not name of a sweet In my opinion this question requires oral evidence and no finding can be recorded in favour of plaintiff at this stage. The defendant has no doubt filed wrappers which show that some others are also manufacturing and selling the same product Dodha. One wrapper is that of Ramsons's dodha Sweet, manufactured by Hafiz Abadian Dihatti, Ram Chand Madan Lal, Bus Stand, Nawan Shaltar and the other is Special Dodha manufactured by Har Har Mahadev Misthan Bhandar, Model Town, Yamuna Nagar 135 001. This documentary evidence prima facie supports the defendant's contention that Dodha is a name of a variety of sweet and it is not a special product which is manufactured by t .....

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uch a sale is on a commercial scale. Reliance is also placed on C.B. Dembla Trading v. Bharat Sewing Machine Co. AIR1982Delhi230 . It is also urged that unless the court has jurisdiction to try all the causes of action, such different causes of action cannot be joined together in one suit. In support of this proposition, reliance is placed on AIR 1942 Allahabad 387, AIR1954Mad156 , AIR1955Mad595 and 1983 AWC 986. It is thus urged that the court at Ghaziabad has no jurisdiction to try the suit. In the suit as framed cause of action arising under the Trade and Merchandise Marks Act has also been joined for which the court has no territorial jurisdiction. Sri Sahini learned counsel for the plaintiff-respondents has submitted that the Court at Ghaziabad has jurisdiction to try the suit and in support of this proposition, he has placed reliance on Glaxo Operations UK Ltd. v. Samrat Pharmaceutical AIR1984Delhi265 and 1992 patent and Trade Marks Cases 94. Reliance is also placed on Tata Oil Mills Co. Ltd. v. Reward Soap works AIR1983Delhi286 . I have considered the submissions made by the learned counsel for the parties. The authorities cited by the learned counsel for the plaintiff-respo .....

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