D.G. Deshpande, J.@mdashThe plaintiffs manufacture and produce cleaning powder and sales it under the name ''ODOPIC''. The cleaning powder is sold in a plastic packet cover of which is specially designed and printed as per Exhibit ''A'' of the plaint.
2. It is the case of the plaintiffs that defendants are also selling washing or cleaning powder under the name of ''magnet'' but in similar printed and designed packet colour scheme of which tallies with that of the plaintiffs and therefore this is not only infringement of the plaintiffs registered ''trade mark'' but it also amounts to interference with the business of the plaintiffs and creating confusion in the minds of the purchasers because, according to the plaintiffs, any layman by looking at the labels or the printing on the plastic packets would be confused as to whether to purchase the product of ''ODOPIC'' or ''magnet'' and if people are so confused it amounts to interference and directly affecting the business of the plaintiffs.
3. The Patent of the plaintiff is registered in 1968 along with label Exhibit ''A'' u/s 32 of the Trade and Merchandise Marks Act, 1958. If the registration is valued for 30 years, then it is in for continuously. The plaintiffs in 1977 found that the defendant was infringing the plaintiffs'' Trade Mark. A Notice given to-the defendant and according to the plaintiff, after this notice of 1977 the defendant did not manufacture and product nor it was sold in similar packing having similar label. However, in 1991 again the defendant started manufacturing and selling washing powder in similar container with similar label; as such the plaintiff first took the criminal action and filed the suit before the City Civil Court.
4. However, the suits relating to the infringement of Trade Marks could only be tried and decided by the High Courts and therefore the plaintiff withdraw the suit before the City Civil Court and this suit. The Plaintiff, therefore, prays relief in terms of Notice of Motion firstly for infringement of Plaintiffs registered Trade Mark.
5. In the other hand it was argued by the defendant''s Counsel that since the Plaintiff withdrew his suit from the City Civil Court without obtaining leave of the court, this suit of the plaintiff was barred under. Order 23 Rule I of the Code of Civil Procedure. Secondly it was contended that the defendant has got Copyright Registration in respect of the Trade Marks ''magnet'' along with label and since this packet was within the knowledge of the plaintiff and since the plaintiff did not take any action for cancellation of the Copyright of the defendant, the plaintiff was prevented from filing the suit and taking out the present Notice of Motion. It was argued that there was delay on the part of the plaintiff in filing the suit and this amounts to acquiesce by the plaintiff and for the reasons the plaintiff was not entitled to any reliefs.
6. So far as the objection of the defendant under Order 23 Rule I is concerned, it is true that the as per Rule I sub-rule (iv) where the plaintiff withdrew from the suit without permission of the leave of the court, then he is precluded from instituting any fresh suit in respect of the same subject matter. In this regard it was argued by the plaintiffs Counsel that the suit before the City Civil Court was wrongly instituted that the City Civil Court was a Court having no jurisdiction over the suit and, therefore, obtaining leave of the City Civil Court was not at all necessary and Order 23 Rule I would not come in the way of the plaintiffs.
7. I find considerable force in this arguments of the Plaintiff''s Counsel, because if by virtue of the provisions of law, City Civil Court was incompetent to deal with the Trade Mark matters and the jurisdiction regarding those suits only vested in the High Court then the institution of the suit by the plaintiff before the City Civil Court was admittedly a wrong step before a Court having no jurisdiction; and therefore if the withdrawal of that suit from the City Civil Court only to file suit before the High Court then, in my opinion, not taking leave of the City Civil Court cannot be considered as fatal, or obstruction in the way of the plaintiff for filing of the present suit. Jurisdiction of the courts is decided by provisions of law and act of parties does not confer any jurisdiction of the court. Filing of the suit by the plaintiff did not could not mean that the plaintiff has conferred jurisdiction on the City Civil Court, and, therefore, withdrawal of the suit by the plaintiff without leave of the City Civil Court cannot affect the tenability of the present suit; and consequently the objection of the defendant in this regard is liable to be rejected.
8. The second objection of the defendant''s Counsel is that the ''magnet'' is a trade mark registered under the Copyright Act, 1977 and this fact was known to the plaintiff but no action for cancellation of registration under the Copyrights Act is taken by the plaintiff. In this regard statement was made by the Plaintiffs'' Advocate that the plaintiff has taken appropriate and necessary action before the Registrar or the Authority under the Copyrights Act and this statement was not contradicted by the Defendants'' Counsel.
9. In my opinion, when the Label Exhibit ''A'' of the Plaintiff is registered under the Trade Marks Act, 1963, then preparation the identical and getting the registration under the Copyrights Act will not give any rights to the defendant to infringe the Trade Marks which was granted to the plaintiff. The argument of the defendants'' Counsel that the label Exhibit ''A'' and label used by the defendants under the name ''magnet'' are different or that they cannot caste confusion in the mind of the consumers or that there is no evidence of the plaintiff to show that desperation was caused on account of the similarity in the labels, there is no force at all.
10. A bare look at both the labels Exhibits ''A'' and label used by the defendants clearly shows that the defendant''s label except the word ''magnet'' and some other words is exact replica of the plaintiff''s label and the only intention is to get the advantage of the reputation, name and registered Trade Mark. When the label itself is registered as Exhibit ''A'', its user by the defendant for selling his product, is prima facie dishonest. No evidence of sell and actual loss is required in such cases.
11. The arguments of the Defendant''s Counsel that there is delay in taking action also does not hold water because when an illegal act is prima facie committed by the Defendant he cannot get protection on the ground of delay. There is strong proof to show that the defendant has made infringement of the right of the plaintiff in respect of the Registered Trade Mark in respect of Exhibit ''A'' of the plaint, delay cannot come to rescue to the defendant nor again give him any permission to sell his product in similar and identical label. Considering all these aspects the Motion of the Plaintiff is liable to be allowed I, therefore, pass following order :
ORDER
The Motion is made absolute in terms of prayer (a) and (b).
Prayer (c) is for appointment of Receiver, I do not find any justification to appoint Receiver at this stage.
Operation of the Order is stayed for two weeks.
12. The Motion is disposed of.
