Bombay High Court
The International Association Of vs The Association Of Lions India on 11 August, 2008
Author: A.M.Khanwilkar
Bench: A.M.Khanwilkar
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1599 OF 2007
IN
SUIT NO.1213 OF 2007
The International Association of
Lions Clubs ..Plaintiffs.
V/s.
The Association of Lions India
also known as Lions India & ors. ..Defendants.
Dr. Virendra Tulzapurkar, Sr.Counsel a/w.
T.N.Daruwalla with Ms.Blossom Noronha i/b. J.G.&
Bilimoria & Daruwalla for plaintiffs.
Mr.Rajesh Ravindran for defendants.
CORAM: A.M.KHANWILKAR,J
DATE : AUGUST 11, 2008.
P.C. :
1. The Plaintiffs have filed the present suit
for injunction and damages against the Defendants on
the ground that the Defendants have infringed the
registered trade mark of the Plaintiffs filed with
the Registrar of Trade Marks in Mumbai; against acts
of passing off, acts likely to pass off and/or acts
enabling passing off by using the words LION as part
of the name of Defendants and for infringement of
copy right by adopting the name, designation, emblem
and other insignia of the Plaintiffs' Association
which are deceptively similar to that of the
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Plaintiffs and for infringement of copy right
committed by the Defendants in substantially copying
the literary work of the Plaintiffs in their
Constitution and By-Laws; against acts of deceiving
the public by having articles published in websites
depicting the Defendants' activities and for
defamatory reports published in the Newspapers,
Circulars, Websites, etc. portraying the Plaintiffs'
organisation with disrepute.
2.
that
Briefly
ig stated, the Plaintiffs have asserted
it is an Association organized and incorporated
as a non-profit Organisation in the State of
Illinois, having their International Office at 300 W,
22nd Street, Oak Brook, Illinois 60523, U.S.A. and
their Area Office at 144, Free Press House, Nariman
Point, Mumbai 400 021. The Plaintiffs' claim that
they are known as "THE INTERNATIONAL ASSOCIATION OF
LIONS CLUBS" and as "LIONS CLUBS INTERNATIONAL" and
are also known as "LIONS CLUBS" or "LIONS CLUB". In
paragraphs 2 to 12 of the plaint, the Plaintiffs have
given the description of the concerned Defendants.
The Plaintiffs assert that the 2nd, 3rd, 7th, 9th,
11th, 13th, 15th, 17th and 21st Defendants are
affiliated to the 1st Defendants viz. LIONS INDIA at
Jabalpur, Madhya Pradesh. The Plaintiffs further
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assert that the Defendant Nos.1,2,3,7,9,11,13,15,18
and 21 are bodies organised and/or incorporated or
registered or existing under the Societies
Registration Act or laws relating to Public Trusts.
The Plaintiffs have also asserted that the Defendant
Nos.4,5,8,10,12,14, 16,17,19 and 20 who now claim to
be associated with the concerned Defendant
organisation in the past were members or office
bearers of the Plaintiffs' member Clubs. In respect
of some of the Defendants it is stated that they are
still
members of the Plaintiffs' member clubs.
Plaintiffs then assert that the present Suit has been
The
filed to claim relief against wrongful adoption and
dishonest use by the Defendants of their
Association/Club name which includes the trade mark
LION/LIONS; and acts of infringement of registered
trade marks of the Plaintiffs such as "LION", "LIONS
CLUBS", "LIONESS", "LEO" and emblems; and acts of
passing off and/or acts enabling passing off; and
infringement of copyright, as committed by the
Defendants, interalia, by adopting the name,
designation, emblem and other insignia of the
Plaintiffs Association and even the literary work
described in the plaint which are deceptively similar
to and a fraudulent imitation of those of the
Plaintiffs. The Plaintiffs assert that the Defendant
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Nos. 2,3,7,9,11,13, 15,18 and 21 are using the word
"LION" by reason of their affiliation with Defendant
No.1 and have a common interest and hence common
questions of facts and law arise in the present suit,
for which, the Plaintiffs have filed one suit joining
all Defendants together.
3. After giving this background, the Plaintiffs
have asserted in paragraph-14 of the plaint that in
1917 a gentleman Mr. Melvin Jones, a Chicago
Insurance Agent,
ig in a meeting of several
businessmen convinced them to form themselves into an
prominent
Organisation that would be dedicated to improvement
of the community as a whole. It is stated that
thereafter, various clubs known as "LIONS CLUBS" came
into existence for doing social work at a Convention
in Dallas, Texas, U.S.A.Delegates representing
several "LIONS CLUBS" agreed to be known as "THE
INTERNATIONAL ASSOCIATION OF LIONS CLUBS". It is
stated that the Plaintiffs Association was formed in
1917 and has its own Constitution and Bye Laws. The
Plaintiffs assert that the Plaintiffs Association was
established for the purpose of organising, chartering
and supervising service clubs to be known as "LIONS
CLUBS" and to co-ordinate the activities and to
standardize the administration of "LIONS CLUBS". It
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is stated that the members of "LIONS CLUBS" are duly
organised and chartered under the provisions of the
Constitution and the Bye-laws. It is stated that
"LIONS CLUBS" are organised and chartered in any
Municipalities, or their equivalent Government
Sub-Divisions. It is further stated that in any
Municipality or its equivalent Governmental
Sub-Division, having more than one Club, each Club
has to add a distinguishing designation to such name.
It is further stated that the membership to
Plaintiffs
inducted
Clubs
ig is by invitation
as a member, each Club is handed over a kit
only and when
by the Plaintiffs, which kit includes the
Constitution and Bye-laws of the Plaintiffs,
Certificate of Membership by the Plaintiffs, the
Welcome Magazine which includes Lions Clubs Objects
and Lions Code of Ethics. The Plaintiffs have even
highlighted 3rd, 6th and 8th paragraphs of the said
Code of Ethics. The Plaintiffs then assert that the
Constitution provides that an application for a
"LIONS CLUB" Charter can be made to the Plaintiffs by
any group, Club or Assembly which has been duly
organised and has elected officers with a charter
fee. That upon approval of application by the said
International Board of Directors of the Plaintiffs, a
Charter signed by the President and the Secretary of
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the Plaintiffs' Association would be issued to such
Club. It is further stated that a "LIONS CLUB" shall
be considered Chartered, when its Charter becomes
official issue. The acceptance of Charter by a
"LIONS CLUB" is considered to be a ratification of
and agreement on its part to be bound by the
Constitution and Bye-laws of the Plaintiffs'
Association and submission by the said "LIONS CLUB"
to have its relationship with the Plaintiffs
Association interpreted and governed by the
Constitution
effect, from
and
time
Bye-laws according to the
to time, in the State
law in
of
Incorporation of the International Association of
Lions Clubs. According to the Plaintiffs, the
Constitution and Bye-laws of the Plaintiffs'
Association constitutes a contract between the
members of the Chartered Clubs and the Plaintiffs.
Besides, it is stated that any Chartered Club is
entitled to resign from the Association and the said
resignation is to be effective upon acceptance
thereof by the International Board of Directors.
Further the International Board of Directors is
entitled to withhold acceptance, however, until all
indebtedness have been paid, all club funds and
property have been properly disposed of and the club
charter has been returned and all rights to the use
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of the name "LIONS", the emblem and other insignia of
the Association has been surrendered. It is stated
that the Plaintiffs' Constitution provides that no
person shall simultaneously hold membership, other
than Honorary or Associate, in more than one "LIONS
CLUB"; and no person shall simultaneously hold
membership, other than Honorary, in a "LIONS CLUB"
and any other service club of like character.
According to the Plaintiffs, as at present, there are
more than 45,300 "LIONS CLUBS" all over the world,
Organisation
including the "LIONS CLUBS" in India. The Plaintiffs
has over 1,55,000 members in over 4,900
Chartered Clubs situated in 59 Districts in India.
4. In paragraph-15 the Plaintiffs have asserted
that the Plaintiffs Area Office in Mumbai provides
administrative support to Lions Clubs leaders and
members in India, Sri Lanka, Nepal, Bangladesh,
Thailand, Malayasia, Brunie, Singapore, Hong Kong and
Macau. It is stated that dues consisting of annual
subscriptions, entrance fees, LEO CLUB/LIONESS CLUB
charges etc. from the LIONS CLUBS in India are all
paid to the Mumbai Office. Every month the Mumbai
office sends out statements of account to each LIONS
CLUBS in India. It is further stated that the Mumbai
office supervises the printing of the "THE LION"
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magazine which is mailed to each member in the
countries mentioned above except for Hong Kong and
Macau who have their own edition in Chinese. In
addition, the Mumbai office also supervises the
printing and mailing of "THE LION" magazine to
Indonesia and Philippines. It is further stated that
the Mumbai office provides support and assistance to
District Governors and Vice-District Governors and
"LIONS CLUBS". The Mumbai Office also prints and
causes to be manufactured material for use by each
"LIONS
individual President, Secretary and Treasurer of each
CLUBS" for all the countries mentioned above.
The Mumbai Office supervises the functioning of the
various licensees in India and ensures that they pay
royalties every quarter. It is stated that the
Association has a Foundation titled the "LIONS CLUBS
INTERNATIONAL FOUNDATION" from which grants to
various projects in India are given for construction
of homes, hospitals and schools in areas affected by
Kutch earthquake. Construction of hospitals,
Schools, vocational training centres are all financed
by the Foundation. The biggest and important
activity is reversing curable blindness. Grant is
given for eye camps, training programs for members,
doctors, paramedics, hospitals managers, construction
of small hospitals managers, construction of small
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hospitals and additions to existing hospitals for
sight related problems. It is further stated that
the Foundation also provides medical equipment. All
these grants are monitored through the Mumbai Office.
The accounts of all the grants are sent to the
Financial Consultant in the Mumbai Office who checks
the audited accounts before processing and sending
them to the headquarters. The Plaintiffs grant
non-exclusive right and license to manufacture,
produce, products/goods bearing the marks and the
names "LIONS", "LIONESS", "LEO, "LIONS CLUBS", "LIONS
INTERNATIONAL" and "LIONS CLUBS INTERNATIONAL" on
general club supplies merchandise as it appears in
the 2003 edition of the Lions Clubs International
Supply Catalogue with exception whenever necessary.
5. In paragraph-16, it is stated that the
Plaintiffs have filed the present suit to claim
reliefs against the Defendants which are mainly:
a) against acts of infringement committed by
the Defendants of registered trade marks of
the Plaintiffs filed with the Registrar of
Trade Marks in Mumbai.
b) against acts of passing off, acts likely
to pass off and/or acts enabling passing off
by using the word lion as part of the name of
Defendants Nos.1,2,3,5,7,9,13,15,18 and 21;
c) against infringement of copyright,
committed by the Defendants by adopting the
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name, designation, emblem and other insignia
of the Association which are deceptively
similar to that of the Plaintiffs.
d) against infringement of copyright,
committed by the Defendants in substantially
copying the literary work the Plaintiffs have
in their Constitution and By-Laws entitled
"Purposes".
e) against acts of deceiving the public by
having articles published in websites
depicting the Defendants' activities.
f) against defamatory reports published in
the Newspapers, circulars, Websites, etc.
portraying the Plaintiffs' organization with
disrepute.
6. The
Plaintiffs have asserted in paragraph-17
that the Plaintiffs and the Club members carry on
various activities all over the world including in
most of the metropolitan cities and most backward
areas and villages in India. Plaintiffs are engaged
in various social work activities such as (a)
conducting Eye Camps in preventing and elimination of
curable blindness; (b) performing cataract
operations free of charge for the poor and the needy;
(c) building hospitals and running the same for the
poor and the needy; (d) building schools, colleges
and playgrounds for the under-privileged; (e)
establishing Vocational Training Centres; (f)
establishing and running Cancer Hospitals and
detection Centers, blood banks, Polio Surgery and
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Correction activities, Map immunization of Hepatitis
B and address leprosy and all the allied dreaded
misnomers attached to the disease; (g) feeding the
poor and the under nourished regularly on a very
large scale and adopting entire villages. In times
of natural disasters, the Plaintiffs have rebuilt
entire townships, in Koyna, Latur, Morbi and Kakinada
in East Godavari District in Andhara Pradesh. The
Plaintiffs have also built nearly 100 houses for the
earthquake affected people of Gujarat e.g. in Bhuj,
Kuch
and Ahmedabad and also built a hospital in Bhuj
and 20 schools.
7. In paragraph 18 the Plaintiffs have stated
that the Plaintiffs also sell and/or distribute
various articles bearing the "LIONS' emblem, LEO
emblem and all of which are registered trade marks in
various classification of goods. The Plaintiffs'
Association has adopted various trade marks and
obtained registrations of various trade marks,
collective membership marks, service marks in
relation to their various services, programs,
articles and merchandise all over the World including
India. The marks and names "LIONS", "LEO",
"LIONESS", LIONS CLUB", "LIONS INTERNATIONAL", "LIONS
CLUB INTERNATIONAL" are used in general Club
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International Supply Catalogue.
8. In paragraph 19, the Plaintiffs have asserted
that because of the excellent track record of the
Plaintiffs in rendering social service, the
Plaintiffs receive vast amounts of donation from
members of the public, Body Corporates, etc. As a
result thereof Plaintiffs continue to endeavour and
perform their social obligation to the Society and
the nation with no profit intention. It is further
stated
plaintiffs
that
and
for the purpose of
Chartered Clubs to render
enabling
effective
the
work in achieving their objectives grants of money
are released since 1968 onwards till today. As and
when such grants are released the necessary entries
are made in the records maintained by the Plaintiffs.
9. In paragraph 20 the Plaintiffs have asserted
that as a result of such varied social
work/activities carried out by the Plaintiffs through
their Chartered Clubs in India the members of the
general public throughout India identify the word
LIONS or LIONS CLUB or LIONS INTERNATIONAL CLUB
and/or the device/emblem of LIONS and LEOS and
LIONESS and other trade marks with the goods of and
services rendered by the Plaintiffs exclusively and
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with none else. The International Association of
Lions Clubs assist the various Lions Clubs to provide
its services to the community. The very word LION,
LIONS, LEO, LIONESS the emblem with the device of
LIONS and even the word LIONISM have become a part
and parcel of selfless service towards the community
in general and especially in India. The said trade
name and trade mark of the Plaintiffs have become
very popular with the urban public and with the
people at large. It is further stated in
each
paragraph-21 that the essential and dominant features
of of the said trade mark are the words LION
and/or LIONS and/or LIONESS and/or LEO and/or LIONS
CLUB and/or LIONS INTERNATIONAL and/or LIONS CLUBS
INTERNATIONAL and/or the device of a Lion and/or the
letter "L" and/or their emblem to reflect the image
of the Lions Clubs in the community, in India and the
world over. These trade marks are registered in the
Trade Marks Registry at Bombay.
10. It is further asserted in paragraph- 22 that
such registration of the trade marks and service
marks entitle and enable the Plaintiffs' organisation
to the exclusive use of such marks and identification
of goods bearing the said marks and services carried
on under the said marks as and that of the Plaintiffs
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and no one else. Plaintiffs' Association maintains
strict control and ensures that no manufacturer uses
the emblem or related Lion insignia or the word mark
LIONS which is the prominent and dominant part of the
emblem or insignia except under express permission
granted by the Plaintiffs. This promotes goodwill
towards "Lionism" both by its members and the general
public. In order to enable the Plaintiffs to
exclusively use the trade marks and render services
under the said marks, the Plaintiffs have obtained
registration
from time to time.
certificates and renewed these
These certificates are issued by
marks
the Registrar of Trade Marks. All the said
registered trade marks are valid and subsisting. The
Plaintiffs have obtained registration of various
trade marks, collective membership marks, service
marks in relation to their various services,
programs, articles and merchandise all over the World
including India. It is further stated in
paragraph-24 that with the advance of technology and
tremendous growth in the field of computers when it
became possible for enterprises, individuals,
corporations and associations like the Plaintiffs to
have their own websites, the Plaintiffs also
registered their website on the Internet/Net work
solutions in the year 1996. The Plaintiffs URL is
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www.lions.org. The Plaintiffs website can be
accessed/logged on by any member of the public having
the facility of the internet connection on a
computer.
11. In paragraph 25, the Plaintiffs have asserted
that from the website of the Plaintiffs, members of
the general public can gain access to the following:
a) Seeking information about the various
activities of the Plaintiffs;
b)
To those groups, clubs, association
interested in becoming a charter club of the
Plaintiffs even application forms with the
necessary data is available;
c) Information in general as to the
various activities carried on, proposed to be
carried on, projects etc.
d) Conveniences in communicating with
the different charter LIONS Clubs in India
and abroad by displaying information about
the proposed activities, meetings, help if
needed, etc. to be conveyed to all the
charter clubs.
12. It is further stated in paragraph-26 that
since the year October, 1996 the Plaintiffs have the
active Website namely www.lions.org. Almost everyday
their website is being accessed by the Plaintiffs
staff to provide information and use. The Plaintiffs
also almost on a daily basis used to carry out search
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on the Yahoo. Search engine as well other Search
Engines such as Google, using the word/search string
"LIONS" to find out whether the trade and service
marks of the Plaintiffs have been infringed by any
third party. It is further stated in parargraph-27
that the Plaintiffs also have an active Website on
the Internet namely "www.lionnet.com" which aims to
promote/help the use of the Internet by members of
"LIONS CLUBS INTERNATIONAL" as well as a guide to
creating Lions webpages. The above said guide
multi-districts
provides a directory of those LIONS CLUBS, districts,
and programs all over the world
including Asia. The sad webpage has a disclaimer-
"You are reminded that all Lions logos are registered
trade marks of LIONS CLUBS INTERNATIONAL and may only
be used by LIONS CLUBS for nonprofit purposes". It
is further stated that the LIONS CLUBS in India
affiliated to the Plaintiffs are also described as
"INDIA LIONS CLUBS".
13. In paragraph-28, the Plaintiffs have stated
that the emblem of the Plaintiffs which is also the
registered trade mark of the Plaintiffs has been
continuously used by the Plaintiffs' Association
since decades to date. The said emblem was designed
by one Maurie Blink of Santa Barbara, California.
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Each part of the emblem has certain significance.
The emblem is recognized throughout the world and is
associated exclusively with the Plaintiffs. The
motto of the Plaintiffs Organisation is "WE SERVE"
and the slogan is "LIBERTY, INTELLIGENCE, OUR NATIONS
SAFETY" for which the acronym is "LIONS". The word
"LIONS" or the emblem or the device of a lion is
associated exclusively with the Plaintiffs. The
Plaintiffs state that to reward members performing
outstanding service in LIONS CLUBS, the Clubs present
other regalia
them with shields, awards, momentos, lapels, pins and
bearing the said emblem, as
appreciation of their splendid work, so as to
motivate them to do more for the less fortunate
members of the community. The Plaintiffs' trade
marks including the said emblem have been used on
various items made available by them. The said trade
marks, name and emblem have come to be associated
exclusively with the Plaintiffs by general public in
India and abroad.
14. In paragraph-29, it is stated that in the
recent past some members and office bearers of
Plaintiffs LIONS CLUBS in India became disgruntled
for reasons best known to them, and left the
INTERNATIONAL ASSOCIATION OF LIONS CLUBS of
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Plaintiffs and purported to form Clubs such as
NATIONAL ASSOCIATION OF INDIAN LIONS, INDIAN LIONS,
LIONS OF INDIA and/or BHARATIYA LIONS and/or
combination of words before or after the word LION
and/or LIONS and/or LIONESS and/or LEO and/or LIONS
CLUB. One such Club was registered in Ajmer under
the Rajasthan Co-operative Societies Act under the
Society name The National Society of Indian Lions,
Ajmer having Society Region No.99/Ajmer/1999-2000
dated 18.2.2000. The Plaintiffs assert that there
were other
persons describing themselves
B.Lion(Bharatiya Lion) before their names claiming as
as
member of "Bharatiya Lions" under the Association
name of NAIL. The same was clear on a perusal of the
visiting card of the 5th Defendant bearing the logo
displayed on the webpage of The National Association
of Indian Lions another organization affiliated to
and/or associated with the Defendants. It is stated
that on the webpage of NAIL the logo with the words
"Bharatiya
Bharatiya Lions" similar to the 5th Defendants' is
displayed. Besides, the logo the following words
appear:- "The National Association of Indian Lions is
exercising primarily to unite the Indian lions
Movement and the NAIL invites all Individual and
Organisation to come with us in nation's interest.
The Nail is in the action for walking with other
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Indian lions Societies that are scattered in all over
India under the One banner as well as opening the new
one. Indian Lions Movement is in progress and
following Indian lions Societies have come into
being, viz; Rajastan-3, Jabalpur(M.P.)-3,
Indore(M.P.)-2, Pune(M.S.)-1, Mumbai(M.S.)-1. That
the index is growing. The Plaintiffs assert that
there is a nexus between the 5th Defendant and the
Defendants No.1 in Suit No.1423 of 2000. In as much
as, their members were once members of the
Plaintiffs' Association.
15. The Plaintiffs assert that as the aforesaid
members were guilty for acts of infringement of
trademarks, acts of passing off, infringement of
Copyright and wrongful adoption and use of domain
name namely "www.indianlions.org" the Plaintiffs
filed a suit bearing Suit No.1423 of 2000 in the
Hon'ble Bombay High Court against those Defendants,
their Prime President Chief Secretary and Treasurer.
In that suit a Notice of Motion No.1175 of 2000 was
taken out by the Plaintiffs. The Court granted
interim injunction in terms of prayers (a) to (e) of
the Notice of Motion and also ordered the Defendants
therein to pay costs. The said decision is reported
in 2006(33) Bom. 79.
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16. The Plaintiffs state that in the said suit
No.1423 of 2000, on a Notice of Motion challenging
the territorial jurisdiction of the Bombay High Court
to entertain the suit, this Court vide Order dated
25.01.2006 (which is reported in 2006(33) PTC Bom
93),
93 held that the Bombay High Court has jurisdiction
to entertain and try the suit for infringement of
trademarks and copyright and passing off as well.
This Court therefore, granted leave to the Plaintiffs
for
joinder of causes of action and the Petition for
Leave under Clause XIV of the Letters Patent was made
absolute.
17. According to the Plaintiffs, the visiting
card of the 5th Defendant T.J.Gala(sic T.G.Gala) who
described himself as "B.Lion" which means Bharatiya
Lion and who resided at 8D Miniland Tank Road,
Bhandup, Mumbai which has the same address as of the
4th Defendant, Bachubhai Gala, and whose visiting
card with the words "Bharatiya Lions" with the device
of the lion was produced in cross-examination to the
Defendants' witness during the trial as the
preliminary issue of jurisdiction under section 9A of
C.P.Code in the abovesaid suit. Significantly, the
said 5th Defendant, T.J.Gala, was the Past Region
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Chairman, Past Cabinet Dy. Secretary of Dist.
323-A-2 of the Plaintiffs Club. The Plaintiffs
assert that in 1998 certain persons in Baroda started
using the word LIONS as their Club name and,
therefore, Plaintiffs entered into correspondence
with them. One of the parties was the 5th Defendant.
However, no action was taken as their activities had
decreased. It is stated that the Plaintiffs also
came across a letter dated 11.05.1998 written by the
then Lion Gurucharan Soi President(1197-98) of LIONS
CLUB
323-A2
OF
who
BHANDUP Zone :
informed the
III Region :
late Lion
IV
Vizpy
district
Minoo
Engineer, the then International Secretary for India
& South Asia of the Plaintiffs that a meeting had
been held on 28.04.1998 at 8.00 p.m. at Lion
T.J.Gala's residence, Bhandup, Mumbai that following
resolution was passed unanimously:-
"Resolved that our Club, Lions Club of Bhandu
of Zone III Region II District 323-A-2 of
Lions International shall surrender back the
Charter to Lions International on or before
30th June, 1998, and it is further resolved
that All Members of the Club will Join and
receive Charter from the Indian Lions, Head
Quarter's at Baroda, Gujarat, on the same day
i.e. before 30th June, 1998 at the
installation Meeting."
The Plaitiffs the assert that the secretary to the
said Lions Club of Bhandup District 323-A-2, which
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surrendered the Charter, was lady Lion Urmila Gala
having her residence at 8-D, Miniland, Tank Road,
Bhandup (W), Mumbai 400 078.
18. According to the Plaintiffs, it is also an
admitted fact that Bachubhai Gala the 4th Defendant
was associated with Plaintiffs Lions Clubs for years.
In the Issue of Gujarathi Daily, Janmabhommi, dated
8.05.2006 an Article "MUMBAI CHI GAAL" written by one
Mr. Kanaiyalal Joshi was published on page 5
(English
translation whereof is annexed as
"P" to the Plaint) under the heading "Now LIONS INDIA
Exhibit
Wave", it was stated as follows:-
"Mr.Bachubhai himself was associated with Lions Clubs
for years. But the moment he was disillusioned with
Lions Club, he did not waste single moment and
converted his Club into LIONS INDIA."
19. In paragraph-30 of the plaint it is asserted
that all the Defendants mentioned in the present
Plaint were fully aware of the activities of
Plaintiffs and of the name of the Plaintiffs also
known as LIONS CLUBS as they were members and in some
cases were also office bearers of Plaintiffs' LIONS
CLUBS when they left the Plaintiffs' Clubs and
started or formed clubs under deceptive trade names
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such as LIONS INDIA or National Association of Indian
Lions or Lions of India or Bharatiya Lions or LIONS
INDIA KOLKATA BALLYGUNGE or LIONS INDIA KOLKATA EAST
or LIONS INDIA KOLKATA INDRANI or LIONS INDIA KOLKATA
WEST.
20. In paragraph-31, it is stated that in the
Article referred to hereinabove, reference was made
to the fact that the said Bachubhai Gala the 4th
Defendant had "converted his Club into "LIONS INDIA";
that
the service of
a Lion is an honest intellectual, dedicated
nation. The said article further
to
mentions that a Lioness too serves the Nation with
equal, selfless fervor. That Leo comprises of
intellectual young people. The Plaintiffs state that
thus the said 3rd Defendant and all the other
Defendants are not only liable under the common law
action of passing off but have also copied and used
the trade marks LION, LIONESS and LEO and the emblem
which are registered trade marks of the Plaintiffs
and are thus liable for infringement of those
registered trade marks and those service marks of the
Plaintiffs as well.
21. In paragraph-32A, the Plaintiffs assert that
a suit bearing No.865 of 2001 filed in this Court by
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24
the Plaintiffs, a Notice of Motion No.622 of 2001 was
taken out, wherein this Court vide Order dated
10.4.2001, restrained the Organization describing
themselves as INDIAN LIONS CLUB and granted interim
injunctions against them restraining the Defendant
therein from using the word LION in the name of the
Organization of the Defendants. The Plaintiffs have
relied on the observations in the said decision. The
Plaintiffs have also referred to the fact that the
said decision was carried in appeal being Appeal
No.413
for ad-interim
of 2001 before the Division Bench but
made by the Defendants therein
prayer
was
refused on 4th May, 2001. Against the said Order of
the Division Bench dated 04.05.2001, the said
Defendants, Indian Lions Club, filed a Special Leave
Petition in the Supreme Court of India being SLP(L)
No.11870 of 2001. On 30.07.2001, the said Petition
was also dismissed by the Apex Court.
22. According to the Plaintiffs, the Defendants
have given an implausible and dishonest explanation
as to how they hit upon the word "LIONS" as a trade
name for their Club and for use of the word "LIONS"
as a trade mark or service mark. According to the
Defendants the words LIONS as coined by the INDIAN
LIONS CLUB stands for Indian Life Improvement
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25
Organisation & National Services. The emblem with
the words Service With National Spirit and encircling
it below is the word INDIAN LIONS.
23. In paragraph-33 of the Plaint, it is stated
that the modus operandi of some of the disgruntled
past members of the Plaintiffs' Chartered Club(s) who
were also Office Bearers of Plaintiffs' LION CLUB,
was, when injuncted to form an
Organisation/Association similar to the Plaintiffs
which includes the word "LIONS" by adding a prefix or
suffix in English and/or Hindi and also use an emblem
which is deceptively similar to the Plaintiffs to
denote that they are purely Indian by origin with a
deliberate and malafide intention to confuse the
public at large and in furtherance of their malafide
intention strive every nerve to defame the reputation
earned by the Plaintiffs whose interest is in service
to the nation and the world at large and who have
been doing so for decades. It is alleged that these
Defendants also use a deceptively similar emblem of
the LION in different positions to be as closely
associated with the Plaintiffs. The Plaintiffs
further allege that the disgruntled members and
Defendants have also used domain names such as
"www.indianlions.org" which include the words LIONS
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26
and e-mail addresses viz. [email protected].
All these acts on the part of the Defendants are
thoroughly dishonest and in bad faith and are done to
take a piggy back ride on the tremendous reputation
and goodwill acquired by the Plaintiffs, not only in
India but in numerous countries of the world in
respect of their services rendered under their well
known trade name and trade marks "LIONS" or "LIONS
CLUBS" and/or LIONS. It is stated that the said
malafide acts and conduct of the disgruntled members
and
which
Defendants
is solely to harass
attitude is not in the interest of the
the Plaintiffs
public
and /or the Nation and/or the Plaintiffs.
24. The Plaintiffs assert that the Defendants
comprising of disgruntled people including the
Defendants cannot serve the Nation as falsely claimed
by Defendants, because from the very onset they have
been practicing deceit by infringing the trade marks
and trade name of the Plaintiffs Association as well
as slandering the reputation earned by the Plaintiffs
which is totally uncalled for and unethical. It is
alleged that the said Defendants comprising of
disgruntled members of the Plaintiffs Chartered Clubs
start a deceptively similar Organisation under a
deceptively similar name as of the Plaintiffs and
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27
when injuncted by Orders of the Hon'ble Courts
disperse form, convert themselves into and form
another deceptively similar organization solely with
malafide and dishonest motives. To substantiate this
plea the Plaintiffs have placed reliance on the
circular distributed by the said Indian Lion
T.J.Gala(Bachubhi) Covinier of Indian Lions.
25. According to the Plaintiffs, these
disgruntled ex-members of the Plaintiffs Chartered
Club
(s) form, reorganize, convert, reform either by
themselves, their invites, nominees or with other
person(s) as an Association/Group/Body/Club/ Society/
Institution/- Corporation/Company by using the words
"LION", "LIONS CLUBS", "LIONESS", "LEO" in
combination with different words in the fields of
social service and charity and/or get such
Association/Organisation registered as a Society,
Club, Charitable Organization, Non-Profit
Organization with the statutory bodies constituted
under statutory enactments of different States in
India. The Plaintiffs claim that these disgruntled
ex-members are not entitled to form, reorganize,
convert, re form either by themselves, their
invitees, nominees or with other person(s) as an
Association/Group/Body/ Club/Society/Institution/-
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28
Corporation/Company by using the words "LION", "LIONS
CLUBS", "LIONESS", "LEO" in combination with
different words in the fields of social service and
charity and/or getting such Association/Organisation
registered as a Society, Club, Charitable, Non-Profit
Organisation with the statutory bodies constituted
under statutory enactments of different States in
India, and are liable to be restrained by an order of
perpetual injunction of this High Court.
26.
Plaintiffs
In the
have
same paragraph-34 of the Plaint
furnished a comparative
the
chart
depicting the Constitution and Bye-Laws of the 1st
Defendants and the remaining Defendants who are
affiliated with the 1st Defendants. From the said
chart, it is clear that the alleged Purposes and
Objectives of the Defendants are couched in words
which are similar and/or identical to the words used
by the Plaintiffs so as to infringe the Copyright the
Plaintiffs have in their literary work.
27. In paragraph-35A the Plaintiffs have referred
to the representative suit filed by Defendant Nos.
10 and 17 both of whom were formerly members of the
Plaintiffs CLUBS. The said Suit was filed in the
Court at Alipore, before the 1st Civil Judge(Junior
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29
Division) being Suit No.43 of 2006 against the
Plaintiffs viz., The International Association of
Lions Clubs, District Club 322B1, the District
Governor of Lions District 322B1 and Lions Foundation
District 322B1 Trust. According to the Plaintiffs,
this false, frivolous and vexatious suit was filed
for various reliefs involving a property known as
B-126, Metropolitan Co-operative Housing Society
situate at South Canal Road, P.S.Tiljala, Kolkata 700
046 which was sold to the Plaintiffs herein (viz
Defendants in
Mr.Satish Lakhotia.
the said suit) by the 8th
The said Mr.Satish Lakhotia, the
Defendant,
8th Defendant, who was the then District Governor of
the Plaintiffs from 01.07.2001 to 30.06.2002 and an
ex-oficio Chairman of the Trust of Defendant
No.1/Plaintiffs sold the said property to the
Plaintiffs in his personal capacity. As the said
property was being put up for sale the said 8th
Defendant in order to suppress the mischief that
would be brought to light instigated the 10th
Defendant, Mr.Kalicharan More and Mr.Suresh Kumar
Dwarkani, the 17th Defendant, to institute the
Alipore Representative suit. In the said suit 8th
Defendant filed an Application for being impleaded as
an interested party. It is admitted by the 10th
Defendant, Mr.Kalicharan More and Mr.Suresh Kumar
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30
Dwarkani, the 17th Defendant, in the 1st para of that
Suit Plaint which reads as follows:-
"At all material times, the defendant No.1
was and still continues to be a district
formation of the International Association of
Lions Club having its office at the United
States of America and also in India and
presently having its district office at the
address mentioned in the cause title
hereinabove. The defendant No.1 is governed
by the constitution and bye-laws of the
International Association of Lions Clubs and
also the constitution and bye-laws of the
International Association of Lions Clubs,
Multiple District 322."
28.
In paragraph-36 the Plaintiffs assert that it
is admitted by the Defendants that the Plaintiffs
have their head office in Mumbai and their affiliated
Clubs all over India which are governed by the
Constitution and Bye-laws of the International
Association of Lions Clubs and also the Constitution
and Bye-laws of the various Multiple Districts.
29. In paragraph-37 the Plaintiffs assert that
the said 8th Defendant by using the name of his
daughter-in-law, Manashi Lakhotia had filed a suit
being Suit No.321 of 2003 in the City Civil Court at
Calcutta on the 6.3.2003 in an attempt to prevent
holding of the Annual District Conference and
elections of the Plaintiffs(viz.defendants in that
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31
suit). The said suit was however, dismissed.
Furthermore, the said 8th Defendant, Satish Lakhotia,
claiming in his capacity of continuing to be a
Trustee of the Plaintiffs Trust viz. Lions
Foundation District 322B1 having its office at 27/8A,
Waterloo Street, P.S.Hare Street, Kolkata- 700 069
(Defendant No.3 in the Alipore Suit), filed a
Criminal Case in the Court of Executive Magistrate
2nd Court, Alipore in M.P.Case No.3959 of 2006 under
Section 144(1) of the Cr.P.C. The fraudulent and
malafide
brought out
behaviour of the said 8th
in a letter dated 15.12.2006 which
Defendant is
was
written on a letter head of a Club known as LIONS
FOUNDATION TRUST which does not belong to the
Plaintiffs having its office at B-126, Metropolitan
Housing Cooperative Society, Canal South Road,
Kolkata-700 046-to the Office-in-charge of the
Tiljala Police Station, Calcutta and signed by the
said 8th Defendant as a Trustee. The Executive
Magistrate, however, dropped the said case vide order
dated 16.02.2007.
30. In paragraph-38, the Plaintiffs have stated
that as a Counterblast, the said 8th Defendant
distributed Circular Letters wherein he described
himself as the Extention Chairman: Eastern India of
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32
LIONS INDIA. At the top right hand corner was
mentioned the Head Office of LIONS INDIA (the 1st
Defendants) which was situated at 19, Nayabazar,
Jabalpur - 482 002 and having its e-mail as
[email protected]. The Plaintiffs have
reproduced the first para of the said letter. It
mentions as follows:-
"I take pleasure to introduce to you "LIONS
INDIA"- a registered organization in India -
an effort to actively participate in the
divine creation of a Glorious India keeping
with the cherished times - An organization
for *PRESTIGE *GOOD FELLOWSHIP and *SERVICE.
This organization is wholly on Indian setup
formed with a view to spend Indian money for
serving the people of India without the
domination of a Foreign Association. It is
By the Indians, of the Indians and FOR THE
INDIANS. LIONS stand of Loyal Intellectuals
on Nations Service. The movement of LIONS
INDIA units started functioning in large
numbers at Maharashtra, M.P. Gujrat, and
U.P., and on 11th of Feb., 2007 ELEVEN New
Units were Inaugurated & Installed at Kolkata
at New Kenilworth Hotel with 277 New Charter
Members, who were also Inducted on same day.
I was appointed as Extention Chairman for
Eastern India by the National President of
Lions India...."(Lion Sushil Jain). "I am
sure service loving members like you will
definitely join this movement. I suggest you
to start your own New UNIT with 25 Members
and start working for our own National
Development as well as good fellowship. You
may contact the undersigned on any working
day for NEW CHARTERAPPLICATION FORM & other
related documents..."
"In case if you feel you are unable to start
your New CHARTER UNIT immediately. I request
you to join Lions India, Kolkata Ballygunge
OR any other LIONS INDIA units functioning in
our area of which details are enclosed
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33
herewith alongwith Membership Form."
31. In paragraph-39, the Plaintiffs allege that
in the said Circular Letter of the 8th Defendant
which is annexed as Exhibit "W" to the Plaint, is the
logo of the LION which is deceptively similar to the
emblem of the Plaintiffs when juxtaposed with the
said logo. That the Head Office of the Lions India
is mentioned having its office at 19, Nayabazar,
Jabalpur - 482002, which is the 6th Defendant
abovenamed. The said Club has been registered under
No.JJ/1912
under the Societies Registration Act,
Jabalpur.
32. In paragraph-40A of the Plaint the Plaintiffs
have made reference to some of the articles published
at the instance of the Defendants in various
newspapers which were also circulated in Mumbai,
which were made available to the Plaintiffs in
Mumbai. Reference is made to the issues of the Hindi
newspaper Dainik Vishwamitra dated 12th & 13th
February, 2007 published in Kolkata also circulated
in Mumbai. Reference is then made to issue of the
Hindi newspaper "Jansatta" dated 14th February, 2007
entitled "Inauguration of Unit of Lions India"
wherein it is mentioned that "the agitation of Lions
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34
India had begun in 1992". Plaintiffs have then
referred to the issue of the Hindi newspaper
"Lokpriya Hindi Dainik" "Chhapate chhapte" dated 14th
February, 2007 entitled "Inauguration of 10 branches
of Lions India" the National President of the Club
Lion Sushil Jain, Past National President Rajesh
Maheshwari, Makhan Agrawal, Satish Lakhotia, Nandlal
Khetan and many prominent personalities were present.
The Plaintiffs have then referred to some of the
excerpts of the 4 page leaflet translation from Hindi
to English
pictorial
which
depiction
was
of
distributed
Lion with the
which
words
has the
"Lion
India" above it and the words in Sanskrit below it.
The title of the article is "WHY LIONS INDIA?" "We
are The Change!" The said leaflet contains following
message:
"Today the time has come to think whether
patriotism has not made us slave to foreign
elements. If not, then why do we need to
take help from International Institutions?
And foreigners are taking advantage of this.
"The article goes on to state that "The
consequences is that for our recognition we
give money to such institutions and later on
our names remain only name sake. And those
foreign institutions become renowned."
"Service is always service. Whether the
institution is India or foreign, the outcome
of service makes no difference. Yes but the
transactions of money make much different.
"Then what kind of justification is there for
paying the cores for just using a foreign
name or a symbol. Spending money for one's
own self is an act. Spending money for the
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35
country means 'Culture'. But to spend money
abroad, then to stretch out hand for our
country is a 'wrongful act'."
The seeds of these thoughts, has given birth
to "Lions India", an institution created
15.08.1992 in Jabalpur.
What kind of understanding is there in being
continuously cheated, and in giving
recognition to the cheat ? Your awakening
can become the morning for the poor of this
country. Your awakening, will snap the sleep
of the cheat.
The word Lion in the article has been
depicted as-
* Symbol Of National Strength independent
* Symbol Of Self Esteem
* National Animal Of Independent India
* Symbol of Independent India's National
Emblem
* Symbol Of Emperor Ashoka's Acknowledgement
And Practice Of Peace, Friendship And
Compassion
Out of the several one of the Basic Tenets
"From the Membership Fees to Set Aside "A
Certain Amount Towards A Permanent Account
And Balance 50 per Cent To Be Compulsorily
Spent On Service Activities."
LIONS: Loyal Intellectuals on Nations Service
LIONS: Loyal Intellectuals on Nations Equal
Selfless Service
LIONS: Loyal intellectuals Youth
Organisation."
33. The Plaintiffs have then referred to the
issues of the Hindi newspaper "Dainik Aaj Ka Anand"
Pune dated 16th August, 2006 wherein a National
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36
Singing Competition was held at B.R.Agarwal School;
Hindi newspaper Pudhari Pune dated 30.03.2006; Sakal
Pune dated 31.03.2006 and Prabhat dated 04.04.2006
"Oath taking by the new office bearers of Linos
India, Pune, Ganeshkhind held at Mahavir Jain
Vidyalay; and Hindi newspaper Loksatta, Pune dated
22nd March, 2007 wherein it was mentioned that Sulbha
Shah had been elected as President of Lions and
Lioness India Ganeshkind branch where Lions India
National President Dr.J.S.Khanna and Actor Shrikant
Moghe were
present and Deputy Police
Sunil Phulari released a Souvenir on Drug Abuse.
Commissioner
34. According to the Plaintiffs, the above
Articles appearing in the aforesaid Newspapers at the
instance of the Defendants, the Defendants are
defaming and sullying the impeccable reputation of
the Plaintiffs, by insinuating that there is flight
of substantial amounts of India money being
transmitted from India to the Head Quarters in USA,
when in reality it is a nominal amount. By their
aforesaid Newspaper Articles, the good name and
reputation of the Plaintiffs have been subjected to
contempt, hatred, ridicule and/or is likely to
subject the Plaintiffs to contempt, hatred, ridicule,
without any lawful justification or excuse. The
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37
Plaintiffs assert that the Defendants are not
entitled to indulge in such acts of character
assassination of the Plaintiffs.
35. It is stated in paragraph-41 of the plaint
that all the Defendants being associated with the
Lions Clubs of the Plaintiffs were thus fully aware
of the fact that the Plaintiffs are a large
International Organization of various clubs known as
the International Association of Lions Clubs or as
India.
LIONS CLUBS in over 200 countries of the world and in
That the Defendants were and are fully aware
of the excellent reputation the Plaintiffs and their
chartered clubs enjoy all over the world in respect
of their activities and services and goods supplied
or caused to be supplied by the Plaintiffs, and also
of the Plaintiffs' trade name, trading style, trade
marks and artistic work of the "LIONS" emblem.
36. In paragraph-42, the Plaintiffs assert that
the adoption by the Defendants of the word "LIONS" or
"LEO" "LIYOS" or "LIONESS" by itself of as part of
their association name and/or part of their e-mail
address and/or part of their domain name or part of
their trade mark or service marks and adopting an
emblem consisting of the word "LION" and a device of
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38
a lion is not only fraudulent but is thoroughly
dishonest and is intended malafide to cause members
of the public to believe that the Defendants are
associated with the Plaintiffs and/or are a part of
the Lions Group.
37. In para-43 of the plaint it is stated that
the Defendants also published articles in websites
depicting the Defendants' activities which are
alongside the Plaintiffs articles. According to the
Plaintiffs, the adoption by the 1st Defendants of the
word "Lions" as part of their e-mail address which is
[email protected] is also fraudulent and
dishonest. The Plaintiffs assert that a person not
knowing the Plaintiffs authorised website in India
might merely type in the yahoo search string or the
google search string for the words "LIONS INDIA" or
"BHARATIYA LIONS" and would be confused and misled by
the different sites of the Defendants (as already
displayed in Exhibit "FF" to the plaint) appearing
alongside on the same page of the Plaintiffs and
would be misled into believing that he had correctly
reached the Plaintiffs website. According to the
Plaintiffs the services and goods of the plaintiffs
under the association name and/or trademark and/or
domain name "Lions" have been widely published and
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39
written about globally. Plaintiffs assert that in an
internet service a particular internet site could be
reached by anyone anywhere in the world who proposes
to visit the said internet site. The Plaintiffs
assert that with the advancement and progress in
technology, services rendered in the internet, have
also come to be recognized and accepted and are being
given protection so as to protect such provider of
service from passing off the services rendered by
others as that of the provider. Furthermore, when
both
that
the
sites are considered, it is crystal
the two names being almost identical or similar
clear
in nature, and appearing on the same page there is
every possibility of an internet user being confused
and deceived in believing that both the sites belong
to one common source and connection, although the two
belong to two different organizations.
38. In para-45 of the plaint the Plaintiffs have
spelt out the offending acts of the Defendants:-
(i) use of the word "LIONS" or "LEO" or
"LIYOS" or "LIONESS" or of any deceptively
similar trade marks or service marks of the
Plaintiffs (as listed in Exhibit "G" and
Exhibit "H" to the Plaint) by the Defendants
either in English or Hindi in relation to
their goods or articles or in their e-mail
address or in any of the websites or in any
part thereof;
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40
AND/OR
(ii) use of the word "LIONS" or "LEO" or
"LIYOS" or "LIONESS" as dominant and
essential part of the name of the Defendants
Association either in English or Hindi and/or
the use of the device of a Lion used as a
logo or symbol of the Defendants Association
(as shown in Exhibit "EE" and Exhibit "FF" to
the Plaint);
AND/OR
(iii) use of the impugned emblem with a
device of a lion or lions in any position;
(iv) use of the literary work the Plaintiffs
have in their Constitution & By-Laws and in
their Club Names.
39. According
ig to the Plaintiffs the abovesaid
acts of the Defendants amount to infringement of
registered trade marks and/or service marks of the
Plaintiffs in India (as enlisted in Exhibits "G" and
"H" to the Plaint), and abroad and/or amounts to
infringement of copyright the Plaintiffs have in the
emblem and other artistic works depicted in Exhibit
"K" to the Plaint and also infringement of Copyright
the Plaintiffs have in their literary work in their
Constitution and By Laws being Exhibit "B" and
Exhibit "B-1" respectively to the plaint and/or
amounts to passing off and/or are likely to pass off
and/or enable others to pass off the Defendants
Association and their Associate clubs, their services
and activities and business as and for that of the
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41
Plaintiffs and/or Defendants' services or activities
as and for the Association and services or activities
of the Plaintiffs and/or their chartered clubs or as
in some way connected with the Plaintiffs. The
Plaintiffs assert that the members of the public are
likely to believe that Defendants are an off shoot or
an agency or chartered clubs of the Plaintiffs or are
in some way connected with the Plaintiffs when in
fact such is not the case and when in reality the
Defendants comprise of and are mostly the former
disgruntled
Plaintiffs
members of Plaintiffs Clubs.
say that any such impression given by the
The
presence of the word "LIONS" or "LEO" or "LIYOS" or
"LIONESS" in the name of the Defendants or their
associate clubs has already prejudiced the
Plaintiffs' reputation and good will and is likely to
further prejudice the Plaintiffs' reputation and
goodwill. The Plaintiffs further assert that the
international reputation and goodwill and the
reputation and goodwill acquired in India by the
Plaintiffs through their hard and excellent work of
over 43 years is at stake and will suffer as a result
of the activities of the Defendants complained of
herein. According to the Plaintiffs' their enviable
world wide reputation is in danger and therefore, it
is necessary that this Court pass orders as prayed
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42
herein.
40. In para-46 of the Plaint the Plaintiffs
allege that the distinct identity of the Plaintiffs'
Organization is likely to be lost through use of a
confusingly similar Organization name by the
Defendants. Moreover, the Plaintiffs are likely to
have difficulties in raising funds and attracting
members and support for its benevolent activities due
to presence of Defendants organization with a
deceptively
negative
similar name and also on account of
propaganda they are publicizing about
the
the
Plaintiffs and their services.
41. The Plaintiffs assert that apart from the
interest of the Plaintiffs, the interest of the
public are paramount. The Plaintiffs allege that the
public might be led to believe that the Association
of the Defendants and their Associate clubs and/or
the activities and services carried out by them
and/or the impugned webpages of the Defendants which
are inserted alongside the Plaintiffs are that of the
Plaintiffs and/or in some way connected with the
Plaintiffs.
42. In para-55 of the Plaint the Plaintiffs
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43
allege that the causes of action against the
Defendants has arisen in the last week of February,
2007 when the 7th Defendants to the 17th Defendants
in utter bad faith and under instigation of the
remaining Defendants purported to create five Clubs
having the words "LIONS INDIA" as the main and
dominant part of their Club name and use of the word
"LION" or "LIONS" as a service mark or trade mark or
as a part thereof and thereby infringe Plaintiffs
registered trade marks and service marks and/or pass
off
pass
or
likely to pass off and/or enable
off their newly created Clubs bearing the
others
word
to
"LIONS as the prominent and dominant part of their
Club name as and for the activities and services
rendered since several decades by the Plaintiffs
Clubs in India. It is stated that the same facts
hold good for the fraudulent imitation of the device
of LION in the emblem of the Defendants which is an
infringement of and deceptively similar to the
Plaintiffs well known device mark and emblems
depicting Lions. Furthermore the depiction by the
Defendants in paragraph 41 and Exhibits "EE" and "FF"
of the Plaint of the LIONS emblem is in direct
violation of the Names and Emblems Improper Use Act,
1954.
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44
43. The Plaintiffs claim that they are entitled
under the Copyright Law in respect of their original
artistic work consisting of the emblem/device of two
Lions as depicted in Exhibit "K" to the Plaint. It
is further alleged that all the Defendants without
exception, have made substantial reproduction of the
original artistic work of the Plaintiffs and made
piracy of that emblem in their emblem under the
infringing trade mark "INDIAN LIONS" or "BHARATIYA
LIONS" and thereby committed flagrant infringement of
the
copyright the Plaintiffs have in their
artistic work of LIONS emblem.
original
44. On the basis of the above the Plaintiffs have
prayed for following reliefs in the present suit:
"(a) that the Defendants by themselves,
their Office bearers, servants, agents and
Associate Clubs be restrained by an Order and
perpetual injunction of this Hon'ble Court
from, directly or indirectly, using in any
manner in relation to goods and/or services
or as a name or part of trade name or Club
name, or organization name, covered by the
Plaintiffs' registered trade marks, such as,
"LIONS" "LIONS INTERNATIONAL", "LIONS CLUB
INTERNATIONAL", "LEO", "LEO CLUBS", device of
"LIONS" and all other trade marks and/or
service marks particularised in Exhibit "G"
and Exhibits "F-1 to F-68" to the Plaint
and/or from using the impugned label being
Exhibit "EE" and Exhibit "FF" to the Plaint
or any other deceptively similar label or
emblem and/or device of "LION" or word "LION"
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45
or "LIONS" so as to infringe the Plaintiffs'
registered trade marks particularised in
Exhibits "F-1 to F-68" and Exhibit "G" to the
Plaint.
(b) that the Defendants by themselves,
their Office bearers, servants, agents and
Associate Clubs be restrained by an Order and
perpetual injunction of this Hon'ble Court
from using in any manner the word "LION" or
"LIONS" or "LEO" or "LEOS" or "LIYOS",
"LIONESS" or "BHARATIYA LIONS" or "INDIAN
LIONS" or "LIONS INDIA" or "NATIONAL LIONS"
or "SEVA LIONS" or "LIONSANSKRUTI" or any
other trade mark or service mark or
Association name which is identical with or
deceptively similar to or a deceptive
variation of the Plaintiffs trade marks and
names, Association name, trade name or trade
mark or service mark such as LION, LIONS,
LEO, LIONESS and the like and/or from using
the impugned emblem or device as depicted in
Exhibit "EE" and Exhibit "FF" to the Plaint
or any device of a "LION" or "LIONESS" or any
other device or emblem which is identical
with or deceptively similar to the Plaintiffs
emblem or device as set out in para 28 and
Exhibit "K" to the Plaint, so as to pass off
or likely to pass off and/or enable others to
pass off the Associations or Clubs or
Organizations of Defendants and/or their
Associate Clubs or activities, their services
and business of the Defendants as and for
that of the Plaintiffs or Plaintiffs
Chartered Clubs or as in some ways connected
with the Plaintiffs.
(c) that the Defendants by themselves,
their Office bearers, servants, agents and
Associate Clubs
i) be restrained by an Order and
perpetual injunction of this Hon'ble
Court from using, directly or
indirectly the word "LION" and/or
"LIONS", "LEO" and/or "LEOS", "LIYO"
and/or "LIYOS" and/or LIONESS and/or
the combination of the words
"BHARATIYA LIONS" and/or "INDIAN
LIONS" and/or "LIONS INDIA" and/or
"NATIONAL LIONS" and/or "SEVA LIONS"
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46
and/or "LIONSANSKRUTI" or any other
trade mark of the Plaintiffs as their
e-mail address or part of their
e-mail address and/or their domain
name and/or part of their domain name
or in any way be inserted in any of
the websites so as to pass off or
likely to pass off and/or enable
others to pass off the Association of
the Defendants and/or their Associate
Clubs and/or the activities, services
and business of the Defendants and/or
their Associate Clubs as and for that
of the Plaintiffs or Plaintiffs'
Chartered Clubs or in some way
connected with the Plaintiffs;
and
ii) be ordered forthwith to take
all necessary steps to have
registration of the e-mail address
being [email protected]
the
of
their head office at Jabalpur or and
other e-mail address and/or any of
the sites of the Defendants having
the deceptively similar name to the
Plaintiffs cancelled forthwith by the
concerned Authorities;
(d) that the Defendants by themselves,
their Office bearers, servants, agents and
Associate Clubs be restrained by an Order and
perpetual injunction of this Hon'ble Court
from reproducing the original artistic work
of the Plaintiffs as depicted in Exhibit "K"
to the Plaint in any material form and/or
communicating the work to the public and/or
issuing copies of the work to the public
and/or from substantially reproducing the
artistic works as has been done by the
Defendants as depicted in Exhibit "EE" and
Exhibit "FF" to the Plaint or in any other
form depicting the logo of the LION or the
like species so as to infringe the copyright
the Plaintiffs have in the said original
artistic work as depicted in Exhibit "K" to
the Plaint.
(e) that the Defendants by themselves,
their office bearers, servants, agents and
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47
Associate Clubs be restrained by an Order and
perpetual injunction of this Hon'ble Court
from reproducing the literary work the
Plaintiffs have in their Purposes and
Objectives of their Constitution and By-Laws
as depicted in Exhibit "B" and "B-1" to the
Plaint or in any material form and/or
communicating the work to the public and/or
issuing copies of the work to the public
and/or from substantially reproducing the
literary work of the Plaintiffs as well as
the Club names of the Plaintiffs as has been
done by the Defendants as depicted in Exhibit
"S" and Exhibit "U" to the Plaint so as to
infringe the copyright the Plaintiffs have in
the said literary work as depicted in Exhibit
"B" and "B-1" to the Plaint.
(f) that Court Receiver, High Court,
Bombay be appointed with all powers under
Order 40 Rule 1 of
Procedure, 1908 to
articles, goods such
the Code of Civil
seize all infringing
as letterheads,
President kit, Membership kit, Car stickers,
other stickers, Pin, Constitution & Bye Laws,
Lions India Information books, Diaries of the
Defendant Clubs and Associations, President,
Secretary & Treasurer Pins, visiting cards,
membership cards, banner, podium banner,
cassette of Lions India Song, Charter
Certificate, Registration form bearing the
impugned name and the impugned emblem or the
device complained of in the Plaint.
(g) that the Defendants by themselves,
their Office bearers, servants, agents and
Associate Clubs be restrained by an Order and
Perpetual injunction from using a confusingly
similar Organisation name and misrepresenting
to the public that they are "LIONS" or
"INDIAN LIONS" or "BHARTIYA LIONS" and by
such misrepresentations raising funds for
their own benefits and also attracting
members by such misrepresentations and
further more hindering the Plaintiffs
benevolent activities on account of the
negative propaganda publicized by the
Defendants about the Plaintiffs Clubs and
their services.
(h) that the Defendants by themselves,
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48
their Office bearers, servants, agents and
Associate Clubs be restrained by an Order and
perpetual injunction from defaming and
sullying the impeccable reputation earned by
the Plaintiffs by making speeches and
publishing articles insinuating that there is
flight of substantial amount of Indian money
being transmitted from India to the Head
Quarters in USA by the Plaintiffs, when in
reality it is a nominal amount, and
furthermore from publishing defamatory
Articles in Newspapers and Circulars and
other material without just cause or excuse,
thereby subjecting the Plaintiffs to hatred,
ridicule and contempt and/or likely to
subject the Plaintiffs to hatred, ridicule
and contempt, without any lawful
justification or excuse and further
prejudicing the Plaintiffs in the way of
their social service activities and
furthermore indulging in such acts
character assassination of the Plaintiffs.
of
(i) that the Defendants, jointly and/or
severally, be ordered and decreed to pay to
the Plaintiffs, a sum of
Rs.1,28,00,000/-(Rupees One Crore Twenty
Eight Lacs Only) or such other sum as this
Hon'ble Court may deem fit and proper, as and
by of damages;
(j) that the Defendants be ordered and
decreed to deliver up to the Plaintiffs for
destruction all articles, goods like
letterheads, President kit, Membership kit,
Car stickers, other stickers, Pin,
Constitution & Bye Laws, Lions India
Information books, President, Secretary &
Treasurer Pins visiting cards, membership
cards, banner, podium banner, cassette of
Lions India Song, Charter Certificate,
Registration Form, Diaries of Defendant Clubs
and Associations bearing the impugned name
and the impugned emblem or the device
complained of in the Plaint.
(k) For ad-interim reliefs and interim
reliefs in terms of prayers
(a),(b),(c),(d),(e),(f), (g) and (h) of the
Plaint;
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49
(l) for the costs of the suit; and
(m) for such further and other reliefs as
the nature and/or circumstances of the case
may require."
45. Consistent with the abovesaid reliefs claimed
in the Suit, the Plaintiffs have prayed for Interim
Relief during the pendency of the Suit by taking out
present Notice of Motion. Before the present Notice
of Motion was considered for grant of ad-interim
relief, the Plaintiffs had applied for leave under
clause
for
14 of the Letters Patent. The said
leave under clause 14 of the Letters Patent
Petition
was
made absolute in terms of prayer clause (a) after
considering the objections taken by the Counsel
appearing for the Defendant Nos. 1,2,4 and 5. I was
informed that the said Order has become final. After
grant of leave under Clause 14, the Plaintiffs moved
the Court for grant of ad-interim relief in the
present Notice of Motion. That request was
incidentally considered by me on June 13, 2007. In
the said order it is noted that except defendant Nos.
1,2,4 and 5, no other Defendants have contested the
grant of ad-interim relief, though they were duly
served. Accordingly, ad-interim relief as against
the remaining Defendants(Except Defendant Nos.1,2,4
and 5) was granted in terms of prayer clause (a) to
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50
(h) of the Motion. Insofar as the Defendant Nos.1,
2, 4 and 5 are concerned for the reasons recorded in
the speaking order dated June 13, 2007, ad-interim
relief was granted in terms of prayer clause (h) of
the Motion. Insofar as prayer for grant of
ad-interim relief in terms of other prayer clauses of
the Motion, the same was denied to the Plaintiffs as
against the Defendant Nos.1,2,4 and 5 on condition
that the said Defendants were ordered to forthwith
give wide publicity of the fact that they were
neither
Even the
constituents or affiliate of the Plaintiffs.
Plaintiffs were permitted to give wide
publicity on that basis without making any other
comment against the said Defendants No.1,2,4 and 5.
Later on however, remaining Defendants(except
Defendant Nos.1,2,4 and 5) took out Notice of Motion
No.2505 of 2005 asserting that they were under the
impression that the affidavit in reply filed by the
Defendant No.1 would suffice and their cause will
also be represented before this Court. They have
asserted that they are the affiliates of Defendant
No.1. The said Defendants therefore, pray that their
non-appearance at the time of grant of ad-interim
relief be condoned and to set aside the Order dated
13th June, 2007 passed against them. They had
further prayed to pass the same order against them as
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51
was passed in relation to the Defendant Nos. 1,2,4
and 5. The said Motion however, was disposed of on
16th February, 2008.
46. To complete the narration of events, it would
be appropriate to advert to one more order passed by
me in the present Notice of Motion dated February,
16, 2008. By the said Order, the pleadings filed by
both the parties on or after 31st July, 2007 though
accepted by the Registry were ordered to be returned
for
present
the
reasons recorded therein. Hearing
Motion was proceeded thereafter on the basis
of the
of the pleadings and documents which were filed by
the parties on or before 31st July, 2007. I shall
briefly refer to the pleadings which are on record in
the present Motion.
47. The Plaintiffs have filed affidavit in
support of the present Motion dated 17th April, 2007.
The affidavit reiterates the assertions made in the
plaint to substantiate the grant of interim relief as
prayed in the Notice of Motion pending in the suit.
The Defendant Nos. 4 and 5 Bachuchai Gala @ T.J.Gala
had filed affidavit to oppose grant of ad-interim
relief dated 3rd May, 2007. It is stated in the said
affidavit that the correct name of the affiant is
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52
T.J.Gala and his pet name is Bachuchai. It is stated
that the names Bachuchai Gala and T.J.Gala of
defendant No.4 and defendant No.5 respectively are
one and the same person (i.e. the affiant). It is
further stated that the said affidavit was being
filed for self and on behalf of the defendant Nos.1
and 2. However, not even remote suggestion is made
that the affiant has been duly authorised by the said
Defendant Nos. 1 and 2 who are juristic persons, to
file affidavit on their behalf. No authority given
by the Defendant Nos.1 and 2 in favour of Mr.T.J.Gala
or Bachubhai has been placed on record. Besides, the
affidavit as has been has been filed is not in
conformity with the requirements of the High Court
Original Side Rules and the Civil Procedure Code. It
does not contain verification clause nor the
affidavit indicates as to which facts deposed by the
affiant have been stated on the basis of his personal
knowledge. Besides this affidavit, there is one more
affidavit on record filed by Nevile Mehta dated 29th
May, 2007 purported to be rejoinder to affidavit in
reply dated 13 May, 2007 filed by the Defendant Nos.
1,2,4 and 5, not only reiterating the case made out
by the Plaintiffs in the plaint and the earlier
affidavit in support of the Motion but also
countering the case made out by the Defendant Nos. 4
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53
and 5 in his affidavit in reply.
48. On the basis of the above said pleadings, the
Counsel appearing for the respective parties made
their submission. The points which would arise for
my determination for deciding the present Motion are
broadly:
(i) Whether the Plaintiffs have made out
prima facie case ?
(ii)
igWhether the balance of convenience is
in favour of the Plaintiffs or the
Defendants?
(iii) Whether the Plaintiffs will suffer
irreparable loss, if the interim relief
claimed by them was to be denied ?
49. Before dealing with the case made out by the
Plaintiffs, it would be appropriate to advert to the
stand taken by the Defendant Nos. 4 and 5 in the
reply affidavit purportedly filed for himself and for
Defendant Nos. 1 and 2 only. Indeed, this reply
affidavit dated 3rd May, 2007 has been filed only to
oppose ad-interim relief. However, as aforesaid, the
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54
further affidavits filed by the respective parties
have been returned for the reasons recorded in the
Order dated 16th February, 2008. In view of the said
order, only the case made out by the Defendant Nos.
4 and 5 in the reply affidavit dated 3rd May, 2007
will have to be considered. Even though the said
affidavit is not in accord with the requirements of
the provisions of the High Court Original Side Rules
and the Code of Civil Procedure, we shall presently
refer to the contents thereof. The first grievance
made in
the reply affidavit is that the
have combined three causes of action namely, cause of
Plaintiffs
action of alleged infringement of trade mark, cause
of action of alleged infringement of copy right and
cause of action of passing off. It is then stated
that this Court has no jurisdiction to try and
entertain the present suit unless ad until leave
under clause 14 of the Letters Patent was to be
granted by this Court. Insofar as this objection is
concerned, the same is already addressed in the order
dated 8th June, 2007 while allowing Petition No.253
of 2007 in terms of prayer clause (a) thereof.
50. It is then stated that there is gross delay
and latches on the part of the Plaintiffs in making
the present Application for ad-interim reliefs. Even
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55
that aspect has been considered in the Order dated
13th June, 2007. However, now the issue that needs
to be addressed is: whether the Plaintiffs are
entitled for interim reliefs during the pendency of
the suit. In my Order dated 13th June, 2007, I have
already noted that the contention regarding delay and
latches may not be so significant at the time of
deciding the main Motion for grant of interim relief
during the pendency of the suit. Inasmuch as, while
considering the prayer for grant of ad-interim
relief,
may
the Court may take into account facts
militate against the theory of imminent
which
threat.
But the same fact will have to be viewed differently
while considering prayer for grant of interim relief
during the pendency of the Suit. In that, at the
stage of ad-iterim relief the consideration is to
grant immediate order; but while examining the
prayer for grant of Interim relief during the
pendency of the suit, all aspects will have to be
taken into account.
51. Be that as it may, according to the Defendant
Nos.4 and 5, the Plaintiffs have not taken any action
against the Defendants for a period of more than 14
years i.e. since 1993 and now after a period of 14
years, the Plaintiffs are not entitled for any
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56
relief. I may once again reiterate at the cost of
repetition that even though the reply affidavit has
been filed for the limited purpose of opposing grant
of ad-interim relief, but as no further affidavit of
the said Defendants is on record, I am taking the
same affidavit into account for examining the rival
submissions to consider grant of interim relief
during the pendency of the suit.
52. The Defendant Nos. 4 and 5 in the said reply
affidavit have
ig then stated that in the
August, 1993, the Defendant No.1 society had received
month of
a notice from the Plaintiffs advocates interalia
alleging infringement of Plaintiffs' trade mark and
for passing off and calling upon the Defendant NO.1
to cease and desist from using name "LIONS" or "LIONS
INDIA JABALPUR MIDTOWN" and for other matters as
mentioned therein. It is then stated that on receipt
of the said notice one Dr.Jagjitsingh Khanna, the
then founder president of the Defendant No.1 Society
filed a Civil Suit in the Court of District Judge,
Jabalpur, Madhya Pradesh being Civil Suit No.383/A of
1994 for declaration that the threats of action for
infringement, passing off or consequently for damages
as contained in the said notice dated 23rd August,
1993 are unjustified and groundless and for
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57
injunction against the Plaintiffs' to desist them
from continuing its threats in any manner either
personally or through their servants and agents. It
is further stated that the said Suit was filed in the
representative capacity under Order 1 Rule 8 of the
Code of Civil Procedure. Leave in that behalf was
also granted by the Civil Court. It is further
stated that the said Suit was tried wherein the
Plaintiffs examined witnesses and after recording of
evidence, the trial Court decreed the Suit on 21st
April,
allowing
2001
both
against the Plaintiffs
the prayers in the
herein
said Suit
thereby
and
particularly against the present Plaintiffs, their
servants, agents from permanently restraining them
from obstructing or interfering with the activities
of the LIONS INDIA and LIONS INDIA JABALPUR MIDTOWN.
It is then stated that the Plaintiffs in the present
suit has not disclosed the aforesaid material fact
and have suppressed the said fact from this Court.
It is stated that the Plaintiffs have not come to
this Court with clean hands; for which reason, the
Plaintiffs are not entitled for any relief. It is
stated that the Plaintiffs have allowed the decree
dated 21st April, 2001 to become final and
conclusive. For that reason, the finding in that
suit would operate as res judicata against the
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58
Plaintiffs. It is stated that the Plaintiffs cannot
agitate the said issues once again in the present
Suit; for which reason, the Plaintiffs are not
entitled for any relief. It is then stated that the
Defendants have been using their name and logo and/or
emblem since then(1993) and have been carrying out
their selfless activities of humanity and help to
poor and needy persons without any interference and
obstruction from the Plaintiffs. It is stated that
the Plaintiffs have admittedly allowed the Defendants
to use the
name and logo of LIONS INDIA,
period of 14 years and therefore, the Plaintiffs have
for the
deemed to have consented and/or acquiescence to the
acts and activities of the Defendants' in the name of
LIONS INDIA and with their logo.
53. It is further stated that the Defendant No.1
is a registered society registered under Madhya
Pradesh Societies Registration Act. It is then
denied that the Defendants have committed
infringement of the trade mark of the Plaintiffs and
committed any acts of passing off or any infringement
of copyright as alleged in the manner or at all. It
is then stated that the Defendant No.1 asserts that
the Defendant No.1 is carrying out activities in the
name of LIONS INDIA from Jabalpur Midtown since prior
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59
to August 1993 and since then is using its Logo
and/or emblem with the words "LIONS INDIA" and
certain Hindi words incorporated therein. According
to the said Defendants, logo and/or emblem of the
Defendant No.1 Society is not at all similar to the
logo and/or emblem of the Plaintiffs so as to deceive
and/or confuse anyone. It is stated that the emblem
or logo of the Plaintiffs and that of the Defendants'
are different in mark, colour and outlook. Besides,
there are two half faces of lions in Plaintiffs'
logo,
one full-face lion.
whereas in the Defendants' logo there is
It is stated that the
only
position
of the two half faces lions is on either sides of
logo; whereas in the case of Defendants' logo, the
lions face is full and front facing. According to
the said Defendants, these are glaring
dissimilarities in the Defendants' logo/emblem as
compared to that of Plaintiffs logo/emblem, thereby
making the overall mark of the Defendants distinctive
and independent in its identity. It is stated that
such dissimilarities will not confuse or deceive any
member of the public in any manner whatsoever. It is
then stated that the Defendant No.1 Society does not
sell, trade, deal with any goods or articles with the
said trade mark. Whereas the Defendant No.1 is only
rendering selfless services to the society at large
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60
and human mankind for upliftment of the poor and
needy people. The Defendants have denied that there
is any copy right existing in any of the work as
claimed by the Plaintiffs. On that basis, it is
asserted that there is no question of infringement of
trade mark or copy right or passing off at all.
54. As aforesaid, the Plaintiffs have filed
rejoinder affidavit and countered the case made out
by the Defendant Nos. 4 and 5 in his affidavit which
and 2 only.
was purportedly filed for himself and Defendant Nos.1
No reply has been filed by Defendant
Nos. 3 and 6 to 28 to counter the assertions made in
the plaint and/or affidavit in support of the Notice
of Motion. The said Defendants however, are now
represented by the same advocate who is espousing the
cause of the Defendant Nos. 1,2,4 and 5. Insofar as
the said Defendant Nos. 3 and 6 to 28 are concerned,
Interim relief as prayed for in the Motion will have
to granted as the case made out by the Plaintiffs has
remained uncontroverted by them. Assuming that the
cause of the said Defendants is espoused also by
Defendant Nos. 1,2,4 and 5 who have already filed
reply affidavit, in that case, they would suffer the
same consequence as would be ordered against the
Defendant Nos. 1,2,4 and 5.
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61
55. Be that as it may, to consider the question
whether the Plaintiffs have made out prima facie
case, I have no hesitation in taking the view that
the issue is already answered in favour of the
Plaintiffs by this Court on more than one occasion in
the past-albeit in the proceedings instituted against
other organisations indulging in the same or similar
activities as in the case of the Defendants herein.
In that, the Plaintiffs had approached this Court as
back
against the
as in 2001 by way of Suit No.865 of 2001
INDIAN LIONS CLUB & Ors.. In the
filed
said
suit, Notice of Motion No.622 of 2001 was taken out.
This Court granted ad-interim relief to the
Plaintiffs in terms of prayer clauses (a) and (b) of
the Motion. The said decision is reported in IPLR
2002 July 337.
337 The relevant extract of the decision
would broadly answer the stand of the Plaintiffs even
in the present Suit which reads thus:
"So far as the question of grant of
ad-interim order is concerned, the plaintiffs
claim to be an international organisation
which is functioning since 1956. The
plaintiffs claim that there are about 44,450
Lions Clubs all over the world and it has
1,55,000 members in 4,300 Chartered Clubs in
India. The plaintiffs claim that the
organisation viz. Lions Club has acquired
the distinctive identity in the minds of
public in India who associates exclusively
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62
with the plaintiffs and the affiliated
organisations set up under the charter
granted by the plaintiffs. The plaintiffs
claim that the defendants have adopted the
name 'Indian Lions Club' fully aware of the
fact that the plaintiffs are a large
international organisation. According to the
plaintiffs, the defendants are trying to pass
off their organisation as part of the
plaintiffs' organisation. It appears from
the affidavit filed on behalf of the
defendants that the members of the defendants
were members of the plaintiff Club
previously, they were dissatisfied with the
work of the plaintiff Club in Mumbai and they
therefore left their membership and they have
formed their own club. It goes without
saying that there is definite similarity in
the name of the plaintiffs and the name of
the defendants. If the defendants'
the
organisation has come into existence because
of the dissatisfaction with the working of
plaintiffs and if it was not the
intention of the defendants to pass off their
organisation as an associate of the
plaintiffs, then there was no justification
for the defendants to use 'Lion' in the name
of their club. If their Club came into
existence because of the dissatisfaction with
the plaintiffs, then they would have tried to
distance themselves from the plaintiffs and
they would have adopted a name which cannot
even remotely be connected to the plaintiffs.
There was at all no justification for using
word 'Lion' in the name of their Club when
everybody knows that the Lions Club is an
international organisation in existence for
last several decades. In my opinion,
therefore, the use of the word 'Lion' in the
name of the organisation of the defendants
shows their intention to pass of their
organisation as that of the plaintiffs. In
this view of the matter therefore, in my
opinion, the plaintiffs are entitled to
ad-interim order in terms of prayer clauses
(a) and (b). It is accordingly granted."
(emphasis supplied)
56. The plaintiffs have had to file another Suit
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63
in this Court being Suit No. 1423 of 2000 against
National Association of Indian Lions and ors. Even
in that Suit a Notice of Motion was taken out by the
Plaintiffs being Notice of Motion No.1175 of 2000.
In that Suit, as issue of jurisdiction of this Court
was raised-which was framed as preliminary issue
under section 9A of C.P.Code as applicable to State
of Maharashtra and answered in favour of the
Plaintiffs. That decision is reported in 2006(33)
PTC 79(Bom.). Significantly, while considering the
issue of
jurisdiction of this Court, reference
made to the evidence of one Mr.T.G.Gala who was using
was
Lions emblem with the word Indian Lions and was
residing at Mumbai. The said T.G.Gala is none other
than the present Defendant Nos. 4 and 5. Suffice it
to observe that the issue of jurisdiction of this
Court has been answered in favour of the Plaintiffs.
After answering the said issue, the Court proceeded
to examine the reliefs claimed by the Plaintiffs in
the said Notice of Motion No.1175 of 2000. It would
be noticed from the Judgment reported in 2006(33) PTC
page 79(Bom.),
79(Bom.) that the contentions which are
required to be addressed in the present Motion were
raised and have already been answered in favour of
the Plaintiffs, in paragarph-8 of the said decision.
The Court has observed thus:
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64
"8. I have considered the rival
contentions between the parties. Insofar as
the question of establishment of the
reputation of the plaintiffs is concerned,
the same is established beyond any doubt.
The plaintiffs are the internationally well
known organisation and are conducting
activities on a very large scale. The
plaintiffs have got large number of clubs in
India and large number of people are their
members and the club is closely associated
with the plaintiffs and plaintiffs activities
in India including the City of Bombay carried
on a very large extent. The plaintiffs have
thus acquired a huge reputation in the word
Lion, Lioness and Leos in association with
their names namely Lions Club of
International. The plaintiffs have equally
acquired a huge reputation in the emblem with
picture of Lions on both sides.
emblem is also well known in India.
The Lion
virtue of the fact that the plaintiffs are
By
carrying out its activities in social sector
and even in charity sector the plaintiffs
name and the emblem is associated with the
plaintiffs and its activities. Thus, in my
opinion, the question that whether the
plaintiffs have acquired a reputation or not
in the word Lion, Lioness and Leo must be
answered in favour of the plaintiffs. The
plaintiffs also advertised the said word
Lion, Lioness and Leos in relation to their
activities in various newspapers and in
pamphlets and posters. It is thus without
any doubt clear that the reputation of the
plaintiffs in the word Lion, Lioness and Leo
and Leos has been very huge reputation and,
therefore, the plaintiffs are entitled to
protect the same." (emphasis supplied)
57. Incidently, in the abovesaid decision, this
Court has also considered the argument that the
Plaintiffs are not entitled for protection of a
service mark because it is not in relation to any
trade or sale of goods and it is in relation to only
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65
charity and services. While referring to the
exposition in the case of The British Diabetic
Association V.s. The Diabetic Society & Ors.(1996
FSR page 1) as well as in the case of WWF
International vs. Mahavir Spinning Mills
Ltd.(1994(14) PTC 250(Del) and the case of The
International Association of Lions Club Vs. Indian
Lions Club & Ors.(IPLR 2002 July page 337), the Court
went on to reject the said argument of the Defendants
therein. The Court positively found that the
Plaintiffs
passing
were entitled to relief of injunction for
off even if the Plaintiffs were not trading
in the goods in the market and are merely rendering
service. In paragraph-10 of this decision, the Court
has adverted to the dictum of the Apex Court in the
case of Cadila Health Care Ltd. V/s. Cadila
Pharmaceuticals Ltd.(2001 PTC 300(SC)) which has
broadly restated the legal principle that in an
action for passing off-on the basis of unregistered
trade mark generally, for deciding the question of
deceptive similarity, the following facts ought to be
considered:
(a) The nature of the marks i.e.whether
the marks are word marks or label marks or
composite marks, i.e. both words and label
works.
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66
(b) The degree of resembleness between
the marks, phonetically similar and hence
similar in idea.
(c) The nature of the goods in respect of
which they are used as trade marks.
(d) The similarity in the nature,
character and performance of the goods of the
rival traders.
(e) The class of purchasers who are
likely to buy the goods bearing the marks
they require, on their education and
intelligence and a degree of care they are
likely to exercise in purchasing and/or using
the goods.
.
clear The that the Court then went on to hold that mark which is being used by it is the plaintiffs having acquired huge reputation, the defendants are trading upon the reputation of the plaintiffs as an international club and, therefore, the Plaintiffs are entitled for injunction. In paragraph-11 of the Judgment, the Court went on to consider the argument in the context of Provisions of Copyright Act and noted that the Plaintiffs would be entitled for Interim relief on account of protection available to the Plaintiffs under the said Act. I have no hesitation in adopting the same approach even in the present suit.
58. After the aforesaid rounds of litigation, the Plaintiffs are now driven to file this suit against ::: Downloaded on - 09/06/2013 13:40:55 ::: 67 the present Defendants who are exploiting the Plaintiffs' trade mark in name as also infringing the copyright of the plaintiffs and indulging in action of passing off by using the name LIONS INDIA so as to cause confusion amongst the unwary public. It is noticed that the marks and emblems are used in such manner as to render use thereof likely to be taken as being used by the association who has affiliation with the Plaintiffs. In the present suit also, the Plaintiffs have asserted that the Plaintiffs' Association 45,300 was formed in 1917 and have service clubs to be known as "LIONS CLUBS" to established coordinate activities and to standardize the administration all over the world including LION CLUBS in India and that the Plaintiffs have 1,55,000 members in over 4,900 Chartered Clubs situated in 59 Districts in India. The Plaintiffs have their Constitution and Bye-laws which spell out the the objects and mottos of the Plaintiffs' association.
None of these facts are in dispute. Besides, the fact that the Defendant Nos. 4,5,8, 10, 12,14,146,17,20 and 24 were members and/or office bearers of the Plaintiffs' member clubs and some of them continue to be so even now is not disputed at all. The Defendants have also not denied the fact that as the said Defendants and some other persons ::: Downloaded on - 09/06/2013 13:40:55 ::: 68 who were disgruntled, left the Plaintiffs' organisation and fraudulently and dishonestly started parallel organisation so as to highjack the huge reputation and activities of the Plaintiffs' Association. Rather it is common ground that the said Defendants parted from the Plaintiffs' Association because they were disillusioned and thereafter started parallel organisation for the same purpose and motto. Indeed, if the said Defendants wanted to disassociate themselves from the Plaintiffs and start another association, it was open to do so.
However, they cannot be allowed to adopt the same or similar name of the newly formed Association, which is confusingly similar to the name associated with the Plaintiffs. The Defendants have not refuted the allegations contained in paragraph-34 onwards of the plaint which have highlighted these aspects. The Plaintiffs have produced the registration certificate in respect of service marks and various registered trade marks in India issued in the name of the Plaintiffs, which include Classes-8, 14,16,18,20,21,24,25. The Plaintiffs have also asserted that they are the proprietors of the trade marks which are service marks falling in Class 42, 36 and 41. The list of all those marks is appended at Exh.G to the Plaint. These facts have gone ::: Downloaded on - 09/06/2013 13:40:55 ::: 69 unchallenged. Going by the said facts, it is obvious that the service marks/trade marks of the Plaintiffs are : Lions emblem(Label), Lions Club, Lions Clubs, emblem(Lion International), emblem(Lion Club), Lions International, Lions Club International, Lions Club etc. The Defendants have dishonestly adopted the same or similar marks. Indubitably, dishonest adoption of the confusingly similar mark by the Defendants after forming parallel organisation leaves no manner of doubt that the attempt was to highjack Association and the huge reputation and activities of the Plaintiffs' thereby to cause injury to the Plaintiffs' Association. It is not only a case of infringement of the registered trade marks referred to by the Plaintiffs but also covered by the mischief of passing off, so as to confuse the unwary public that the Defendants were affiliates of the Plaintiffs' Association and were carrying on activities on their behalf. The Plaintiffs in paragraph-34 of the plaint have pointed out the similarities in the Constitution of the Plaintiffs and Defendant No.1 in the following terms:
Plaintiffs Defendant No.1
-------------------------- --------------------------
INTERNATIONAL CONSTITUTION Lions India
Constitution and Bye-Laws
ARTICLE 1
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70
Name, Slogan and Motto 1.Name,
Name, Slogan and Motto
Section 1.NAME.
NAME. The name a) The name of this
of this association shall organization shall be:
be : The International The Association of Lions
Association of Lions India.
Clubs.
Section 2.SLOGAN.
SLOGAN. Its b) Its slogan shall be :
Slogan shall be: Liberty, Loyal Intellectuals On
Intelligence, Our Nation's Nation's Service and its
Safety. abbreviations shall be
LIONS".
Section 3.MOTTO.
MOTTO. Its c) Its Motto shall be :
Motto shall be: We serve. "Vayam Rashtriya Jagrayam
Prohita" i.e. we could
keep the Nation awakened
and alive through our
ig service activities.
Service to humanity.
And
-------------------------- --------------------------
Article II 4. Purposes and Objectives Purposes The purposes of this The purpose of this association shall be: organization shall be :
(a) To organize, charter a) To organize, charter and supervise service and supervise service clubs to be known as Lions Groups to be known as clubs. 'Lions India'.
(b) To coordinate the b) To coordinate the activities and standardize activities and standardize the administration of the administration of its Lions clubs. 'Lions India' Groups.
-------------------------- --------------------------
(e) To take an active The Objectives of this interest in the civic, organization shall be:
cultural, social and moral welfare of the community. a) To promote the National (ARTICLE II Purposes) spirit and patriotism.
b) To activate the
citizens to serve the
community, to take active
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71
interest in civic,
cultural, social and moral
welfare of common citizens
through various 'Lions
India' groups.
-------------------------- --------------------------
(g) To provide a forum for c) To arrange open
the open discussion of all discussions on all matters
matters of public of public interest.
interest; provided, However, there shall be no
however, that partisan discussions on any
politics and sectarian particular political party
religion shall not be or any religion.
debated by club members.
(ARTICLE II Purposes)
-------------------------- --------------------------
(f) To unite the clubs in
the bonds of friendship,
good fellowship and mutual
d) To unite the citizens
through various groups in
the bonds of friendship,
understanding. good fellowship and mutual
understanding.
-------------------------- --------------------------
. The Plaintiffs have also in the same
paragraph asserted that the Defendants have used
similar Club Names as follows:
PLAINTIFFS DEFENDANTS
-------------------------- --------------------------
LIONS CLUB CALCUTTA LIONS INDIA KOLKATA
BALLYGUNGE BALLYGUNGE
-------------------------- --------------------------
LIONS CLUB CALCUTTA EAST LIONS INDIA KOLKATA EAST
-------------------------- --------------------------
LIONS CLUB CALCUTTA LIONS INDIA KOLKATA
INDRANI INDRANI
-------------------------- --------------------------
LIONS CLUB CALCUTTA WEST LIONS INDIA KOLKATA WEST
-------------------------- --------------------------
LIONS CLUB OF GANESHKHIND NATIONAL LIONS CLUB OF
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72
GANESHKHIND
-------------------------- --------------------------
LIONS CLUB OF PUNE MUKUND NATIONAL LIONS CLUB OF
NAGAR PUNE MUKUND NAGAR.
-------------------------- --------------------------
59. In other words, the Plaintiffs have not only
made out prima facie case in the context of
infringement of Registered Trade Mark, but also of
passing off and infringement of copyright. Besides
that, the Plaintiffs have also established the case
that the Defendants were indulging in negative
publicity against the Plaintiffs by issuing circulars including in various newspapers. The Plaintiffs have produced the relevant circulars, newspaper cuttings, which clearly indicate that the attempt is to tarnish the huge reputation of the Plaintiffs. From the plain language of the stated circulars and news items, it is amply clear that the publication thereof is malafide. Amongst other, insinuation is made that there is flight of substantial amounts of Indian money being transmitted from India to the Head Quarters in USA, when in reality it is a nominal amount. The fact that such publication has been made is not denied at all. Significantly, no justification is offered by the Defendants either in the news items or circulars or for that matter by way of affidavit before this Court to substantiate the ::: Downloaded on - 09/06/2013 13:40:55 ::: 73 allegations contained in the stated news items and circulars produced by the Plaintiffs. Furthermore, by publishing defamatory articles in newspapers and circulars and other materials without just cause or excuse, the Defendants have subjected the Plaintiffs to hatred, ridicule and contempt and/ or likely to subject the Plaintiffs to hatred, ridicule and contempt. It has and is bound to prejudice the Plaintiffs and come in their way of social service activities. Indeed, the tenor of the publications is indulging Plaintiffs.
in acts of character assassination of the
60. Taking overall view of the matter, I have no hesitation in accepting the Plaintiffs' case that the Defendants have indulged in infringement of Registered trade mark and trade name of the Plaintiffs but also in using the name, emblem or service mark of the Plaintiffs, which is identical with or deceptively similar to or a deceptive variation of the Plaintiffs trade marks and names, association name, trade name or trade mark or service mark such as LION, LIONS, LEO LIONESS and the like and/or of using the impugned emblem or device as depicted in Exh. "EE" and Exh."FF" to the plaint.
The Plaintiffs have also made out case of passing off ::: Downloaded on - 09/06/2013 13:40:55 ::: 74 against the Defendants, as also one of infringement of copyright, of reproduction of the original artistic work of Plaintiffs as has been done by the Defendants (as can be seen from Exh. "EE" and "FF"
to the plaint). Counsel for the Plaintiffs has justly placed reliance on the decision of the House of Lords in the case of Reckitt & Colman Products Ltd. V/s. Borden Inc. & Ors. reported in (1990) RPC 341. It has noted the well established position that the law of passing off could be summarised in one his goods short, general proposition:
as those of another.
no man may pass off
It is further held
that it could more specifically be expressed in terms of the three elements, each a question of fact, which a plaintiff had to prove in order to succeed.
Firstly, that there was a goodwill or reputation attached to the goods or services which he supplied in the mind of the purchasing public by association with their identifying get-up. Secondly, that there was a misrepresentation to the public likely to lead the public to believe the goods or services offered by him were the goods or services of the plaintiff.
And thirdly that he was suffering or was likely to suffer damage by reason of erroneous belief engendered by the defendant's misrepresentation. The Court went on to observe that it was irrelevant ::: Downloaded on - 09/06/2013 13:40:55 ::: 75 whether or not the public was aware of the plaintiff's identity as the manufacturer or supplier of the goods in question, as long as they were identified with a particular source. Applying these principles to the fact situation of the present case, there can be no difficulty in answering the issue under consideration against the Defendants and in favour of the Plaintiffs. The Plaintiffs have more than established that there was goodwill and reputation attached to the services which they were rendering services in were the minds associated of the public and identified and with those the Plaintiffs. Besides, by fraudulently adopting similar name the Defendants were bound to misrepresent the public were likely to be led to believe that the services offered by the Defendants were the services of the Plaintiffs. The Plaintiffs have produced documentary evidence such as a letter indicating that position. Moreover, the fact that due to such misrepresentation, the Plaintiffs were to suffer damage by reason of erroneous belief engendered by the Defendants through its representation was inevitable.
61. The Plaintiffs have also relied on the contents of Kerly's Law of Trade Marks and Trade ::: Downloaded on - 09/06/2013 13:40:55 ::: 76 Names, Fourteenth Edition, wherein in paragraph-15-061, it is noted that it is clear that a professional association of sufficient standing may sue to prevent others imitating either its name or the initials by which qualified persons indicate their membership of it. It is further noted that such course is open even to charitable institutions and perhaps even religious organisations. To get over this position, the Counsel for the Defendant would at the outset contend that the Defendants were not using associated the stated mark nor the and/or affiliated with the Defendants organisation were using such mark so as to cause any infringement or action of passing off. However, no such case is made out in the reply affidavit filed by the Defendants.
This statement is made across the bar by the Counsel for the Defendants. If this statement is accepted as it is, then no other enquiry would be necessary.
However, as the Plaintiffs have produced plentiful material to indicate the complicity of the Defendants, it has become necessary to address the matter on its own merits and not on the basis of the abovesaid statement of the Defendants.
62. It was then contended that the real issue to be considered is whether the mark and emblems at Exh.
::: Downloaded on - 09/06/2013 13:40:55 ::: 77EE and FF can be said to be affecting the mark of the Plaintiffs in any manner. The argument of the Defendants is that the logo adopted by the Defendant No.1 Society is not at all similar to the logo and emblem of the Plaintiffs so as to deceive and or confuse any one. It is argued that the emblem or logo are different in mark, colour and outlook.
Besides, there are two half faces of lions in Plaintiffs' logo, whereas in the Defendants' logo there is only one full face lion. Moreover, the position of the two half faces lions is on the either sides of logo, whereas in the case of the Defendants' logo, the lions face is full and front facing. The argument proceeds on the dissimilarities in the logo/emblem adopted by the Defendants as compared to that of the Plaintiffs' logo/emblem. The argument will have to be stated to be rejected. It is not only the dissimilarities pointed out by the Plaintiffs in the logo/emblem that can be the basis to absolve the Defendants, but the other material aspects will have to be considered so as to take overall view of the matter. I have no doubt that the unwary public would get confused by the generality of appearance and projections made by the invaders and not by the insignificant dissimilarities of the mark, colour and its outlook-such as the difference between ::: Downloaded on - 09/06/2013 13:40:55 ::: 78 two half faces of lions or one full face lion and its positioning. It is enough even if the confusion is caused on one occasion to the unwary public who may later on realise the subtle difference in the form.
In other words, the Court will have to take over all view of the matter and reckon the similarities which may result in causing confusion amongst the unwary public. Applying that test, the argument of the Defendants founded on the dissimilarities in the logo/emblem at Exh.EE and FF to the plaint will be of no that avail.
The Plaintiffs have established the they have obtained registration of trade fact mark, name and device. As aforesaid, the fact that there are some insignificant dissimilarities thereto will be of no avail.
63. The Defendants have then attempted to give justification of adoption of the mark, name and emblem relying on its constitution and Bye-laws and Article, particularly at page 512 and 513. None of that can be plausible justification so as to absolve the Defendants particularly having regard to the fact that some of the Defendants were members and office bearers of the Plaintiffs' member clubs in the past and formed part of the disgruntled group who separated from the Plaintiffs' association and formed ::: Downloaded on - 09/06/2013 13:40:55 ::: 79 their own parallel organisation, fraudulently and deceptively adopted similar name so as to confuse the common public. Even the argument of the Defendants that the activities of the Defendants are entirely different than that of the activities of the Plaintiffs does not commend to me. From the comparative table produced by the Plaintiffs, I have no hesitation in taking the view that the purpose, objective and activity of the Defendant No.1 and other Defendants who are affiliates of the Defendant the No.1 is similar to that of the objective and motto of Plaintiffs' association. That is bound to cause confusion in the minds of unwary public for atleast once.
64. That takes me to the principal argument of the Defendants that the Plaintiffs are not entitled to any discretionary relief from this Court having regard to the fact that the Plaintiffs have not disclosed the factum of institution of the Civil Suit No. 383/A/94 in the District Court of Jabalpur, Madhya Pradesh against the Plaintiffs by one Dr.Jagjitsing Khanna, which was filed in representative capacity under Order 1 Rule 8.
Relying on this fact, three arguments have been canvassed. Firstly, that the Plaintiffs inspite of ::: Downloaded on - 09/06/2013 13:40:55 ::: 80 the knowledge of the said suit allowed the Defendants to continue its activity for such a long time and it is only after the Defendants have grown, the Plaintiffs have resorted to the present action which obviously suffers from gross delay and latches. It is also argued that the Plaintiffs have allowed the Defendants to use the name and logo of LIONS INDIA for considerably long time, therefore, have deemed to have consented and/or acquiescence to the acts and activities of the Defendants in that name. The second argument is that the decree passed in the said Suit having been allowed to become final, the finding in the said Suit will bind the Plaintiffs. In other words, the cause in the present suit is barred by resjudicata. The third argument is that the Plaintiffs have approached this Court with unclean hands for which reason not entitled for any relief.
65. The question is whether the Plaintiffs were obliged to disclose the fact of issuance of notice to Defendant No.1 in August, 1993 and of institution of the stated suit in representative capacity by Dr.Jagjitsingh Khanna. In the first place, it is not in dispute that said suit filed by Dr.Jagjitsingh Khanna was essentially under section 120 of the Trade and Merchandise Marks Act, 1958(which is analogous to ::: Downloaded on - 09/06/2013 13:40:55 ::: 81 Section 142 of the Trade Marks Act, 1999). It is well established that the suit filed under the said provision is essentially for direction against the person who threatens with an action or proceedings for infringement of trade mark, which is Registered or allegedly by him to be registered. The person aggrieved by such threat is free to file suit against the other person (one who has given legal notice) for administering groundless threat of legal proceeding.
The efficacy of such proceeding is no more res integra.
decisions
It
in
would
the case
be useful
of
to
Dolphin
refer to
Laboratories
the
Pvt.Ltd. V/s. Kaptab Pharmaceuticals reported in
AIR 1981 Calcutta 76(paras- 19 and 20); Madura Coats
Ltd., Madurai & Ors V/s. Chetan Dev reported in AIR
1985 Punjab & Haryana 43(paras-6 and 7); Rajni
Industries v/s. Bhartiya Dhoop Karyalaya &
Ors.reported in 2001 PTC 480(Del)(para-9); Lakshmi
PVC Products Pvt.Ltd. Vs.Lakshmi Polymers; and
Madras High Court decision dated 25th July, 1990
(para-15).
para-15). The consistent view is that the scope of
such suit is very limited. The relevant issue to be
decided in that suit is whether the threats given by
the Defendants were justifiable or not; if
unjustifiable should continuance thereof be
injuncted. It is well established position that any
::: Downloaded on - 09/06/2013 13:40:55 :::
82
other finding recorded in such a suit would be
irrelevant in the context of the limited scope of the said suit, even if addressed by the Court while answering the real issue in the suit. That finding would be unnecessary and not bind the defendant in any suit which he may be advised to bring. Thus understood, the fact that such a suit was filed in earlier point of time, non-disclosure thereof would be of no serious consequence; as it is not a relevant and material fact. Indeed, it would have been fact. For appropriate for the Plaintiffs to disclose that the present, suffice it to observe that non-disclosure of such fact cannot materially affect the outcome of the present proceedings nor militate against the Plaintiffs. It necessarily follows that due to non-disclosure of such fact, the Plaintiffs cannot be non-suited on the argument of having approached this Court with unclean hands so as to deny them any relief in the present action. On the other hand, in law, the Plaintiffs are legitimately entitled to take recourse to this substantive remedy irrespective of whether suit under Section 120(now Section 142 of the Act of 1999) have had been filed or decided against the Plaintiffs. For the same reason, even the other argument of the Defendants that the present suit is barred by principles of res ::: Downloaded on - 09/06/2013 13:40:55 ::: 83 judicata-as judicata the Plaintiffs have allowed the decree and/or finding passed in the former Suit filed before Jabalpur Court to attain finality, will have to be stated to be rejected. As aforesaid, even if the Jabalpur Court has recorded adverse finding against the Plaintiffs in relation to the facts or matters which are relevant in the present proceedings, such finding will be of no avail being unnecessary and not binding on the Plaintiffs. That finding neither can be said to operate as res judicata or constructive res judicata against the Plaintiffs, as is sought to be contended.
66. The Counsel for the Defendants has relied on the dictum of the Division Bench of our High Court in unreported Judgment in the case of Maganlal Kuberdas Kapadia V/s. Themis Chemicals Ltd. & M/s.Orgachem Enterprises & Ors., Ors. in particular paragraphs-12,13 and 14 thereof which reads thus:
"12. A Court of Law exercising discretionary power in such matters, rightly insists on a party approaching the Court with clear clean hands. The message has its enduring value: and has preserved itself all through the ages. Litigants who want only disregard this basic principle do so at their peril. This case rightly attracts those valutary principlesa; and it is a clear illustration where the application of the principle is fully justified.::: Downloaded on - 09/06/2013 13:40:55 ::: 84
13. About a century and a half back, the first of he decided cases on that aspect had appeared in Law Reports: C.Dalglish V. Jarvis, 1850(2) MAC & G. page 231.(20 L.J.Ch.475). It is declared in unmistable terms the obligation on a party seeking an interim equitable relief to bring under notice of Court all facts material to the determination of his right to injunction. That he was not aware of the importance of the facts, it was declared, was no excuse. Langdale's observation that "... every fact must be stated, or, even if there is evidence enough to sustain the injunction, it will be dissolved" has now become part of the juristic principle. To this, is a concurring and complimentary observation of Rolfe B., :
"If he conceals anything that he knows to be material, it is fraud, but besides that if the conceals anything that may influence ...." A plea to limit the application of the principle to certain specified instances of injunctive relief was rightly repelled.
14. Rex V. Konngton Income Tax Commission 1017 (1) King's Bench Division, page 486, can be characterised as a legal classic on this aspect. The principles alluded to above, have been applied with an elaborate and illustrative exposition of an exhaustive variety of arguments. It is unnecessary to prolong an exercise on chronicling the cases, English and India, were the principles haves been enthusiastically adopted by Courts of Law. Illustrative decisions are : Asians Engineering Co.: V.Achra Ram A.I.R. 1951 All. 746(FB) Prof: A.K.Sanjal V. Chitta Ranjan Basitha and others A.I.R. 1982 Cal. 412 (which in turn refers to earlier decisions of that Court such as of Bosc J.(as he then was) in Ratan Chandra Nayak V. Adhar Biswas - AIR 1952 Cal. 72. The Supreme Court has applied the principle in the context of revocation of special leave obtained by suppression of material facts vide Udai Chand v. Shankar Lal-AIR 1978 Supreme Court 765. The decisions do duty to indicate the hardened foundationrock whereupon many ancillary edifices of administration of justice have been build ::: Downloaded on - 09/06/2013 13:40:55 ::: 85 upon."
The observations in this decision will have no application to the fact situation of the present case for the reasons already recorded in the earlier part of this Order.
67. That takes me to the argument of the Defendants that the Plaintiffs are not entitled to any interim relief on account of gross delay and latches.
that the From the material on record, it is obvious Plaintiffs had issued Notice to the Defendant No.1 in August, 1993. It is also noticed that one Dr.Jagjitsingh Khanna had filed Suit in representative capacity in the District Court at Jabalpur, which was eventually decreed. The question is whether on account of inaction by the Plaintiffs to institute the suit for the relief now claimed before this Court in the present suit can be said to attract the principles of gross delay and latches.
68. Indeed, it may appear that the Plaintiffs did not move against the Defendant No.1 after issuance of notice in August, 1993. That does not mean that continuation of the activity by the defendants in particular defendant no.1 has been condoned by the ::: Downloaded on - 09/06/2013 13:40:55 ::: 86 Plaintiffs. The fact that the Plaintiffs have been asserting their right of infringement of registered trade mark and/or action of passing off and infringement of copyright is obvious from the two suits filed by the Plaintiffs against the other organisations during the relevant period. It may be that after the Plaintiffs realised that the activities of the defendants in particular defendant No.1 were reaching threatening proportion the Plaintiffs have approached this Court. In the first place, come the fact that the Plaintiffs across the activities of the Defendants have recently herein as stated in the plaint has remained uncontroverted as of now.
69. The Counsel for the Defendants would however, place reliance on the decision in the case of Cordes and ors. Vs. R. Addis & Son, reported in Reports of Patent, design and Trade Mark Cases(Vol.XL) on page 133. Reliance was placed on the exposition from pages 142 to 143 of this reported decision. The Chancery Division in the fact situation of that case was of the view that there has been a user by the defendants for a length of time and the circumstances in that case disentitled the Plaintiffs for any interim relief. In that case, the user was noticed ::: Downloaded on - 09/06/2013 13:40:55 ::: 87 to be about 15 or 16 years. In the context of the said distance of time, the Chancery Division observed thus:
"I think that on the facts the Plaintiffs have failed to establish that there is such a get-up of the Defendants' goods or of the packets in which they are contained, as to lead to the results of which they are apprehensive. But assuming that I had come to the conclusion that, having regard to the adoption by the Defendants of the slogan, upon which great reliance was rightly placed by the Plaintiffs, the Defendants had invaded the area of territory already occupied by the Plaintiffs, the question would have arisen, a question more of law than of fact, whether the Plaintiffs would, according to the practice of this Court, be entitled to the injunction they claim in paragraph 2 of their prayer. The evidence is that, while the Plaintiffs have been carrying on a moderate or even a small business in this country, advertised in magazines circulating in this country, and therefore to that extent advertised in this country, the Defendants have side by side been manufacturing and selling in enormous quantities tooth brushes enclosed in cartons bearing this slogan, at least since 1913, and according to some of the evidence for 15 or 16 years. For the purpose of determining this issue I must assume that the Plaintiffs are traders who have started in this more or less small way in this country, and have been continuously carrying on this business. But I must assume also that they have not, during that period, been adopting a sort of Rip Van Winkle policy of going to sleep and not watching what their rivals and competitors in the same line of business were doing. I accept the evidence of any gentleman who comes into the box and gives his evidence in a way which satisfies me that he is speaking the truth when he says that he individually did not know of the existence of a particular element or a particular factor in the goods marketed by ::: Downloaded on - 09/06/2013 13:40:55 ::: 88 his opponents. But the question is a wider question than that: Ought not he to have known: is he entitled to shut his eyes to everything that is going on around him, and then when his rivals have perhaps built up a very important trade by the user of indicia which he might have prevented their using had he moved in time, come to the Court and say:
Now stop them from doing it further, because "a moment of time has arrived when I have awakened to the fact that this is "
calculated to infringe my rights"? Certainly not. He is bound, like everybody else who wishes to stop that which he says is an invasion of his rights, to adopt a position of aggression at once, and to insist, as soon as the matter is brought to his attention, or as soon as, in the opinion of the Court, it ought to have come to his attention, to take steps to prevent its continuance; it would be an insufferable injustice were the Court to allow a man to lie by while competitors are building up an important his industry and then to come forward, so soon as the importance of the industry and then to come forward, so soon as the importance of the industry has been brought home to his mind, and endeavour to take from them that of which they had legitimately made use; every day which they used it satisfying them more and more that there was no one who either could or would complain of their so doing.
The position might be altogether altered had the user of the factor or the element in question been of a secretive or surreptitious nature; but, when a man is openly using, as part of his business, names or phrases, or other elements, which persons in the same trade would be entitled, if they took steps, to stop him from using, he gets in time a right to use them which prevents those who could have stopped him at one time from asserting at a later stage their right to an injunction. In this case I am quite satisfied on the evidence that this has been the case; that there has been a user of these factors or elements, of which the Plaintiffs mainly complain, for a length of time and in circumstances which at this date disentitle them, even if I had found the facts differently, to the relief which they ::: Downloaded on - 09/06/2013 13:40:55 ::: 89 claim."
What is significant to notice is that the Court has observed that the position might be altogether altered had the user of the factor or the element in question been of a secretive or surreptitious nature;
but, when a man is openly using, as part of his business, names or phrases, or other elements, which persons in the same trade would be entitled, if they took steps to stop him from using, he gets in time a him right to use them which presents those who could have stopped at one time from asserting at a later stage their right to an injunction.
70. In the present case, the question whether the Plaintiffs shut their eyes to the activities of the Defendant No.1 is a matter which will have to be established at the trial. For the present, I am inclined to lean in favour of the Plaintiffs that they had taken steps to prevent the invaders from exploiting their(Plaintiffs) huge reputation and hijacking the activities by forming organisations in different names and combinations. Notably, there is hardly any doubt as would emerge from the various circumstances on record, that the Defendants adopted the name and mark as well as emblem of the Plaintiffs ::: Downloaded on - 09/06/2013 13:40:55 ::: 90 fraudulently and dishonestly. The disgruntled group of persons who parted from the Plaintiffs' organisation formed their own parallel organisation adopting the similar name as that of the Plaintiffs.
The test to be applied in respect of such cases has been spelt out in the case of Power Control Appliances v/s. Sumeet Machines Pvt.Ltd.reported in 1994(2) SCC 448. In this Judgment the Apex Court has adverted to the observations of the Division Bench in the case of K.E.Mohammed Aboobacker V/s. Nanikram Maherchand refers to reported in 1957(II) Mad LJ the approach of the learned Single 573, which Judge who declined to grant injunction, for in his opinion the doctrine of acquiescence and honest and concurrent user will be attracted. In the present case as found earlier, user is not honest at all. It is fraudulent user so as to highjack the huge reputation and activities of the Plaintiffs. If it is not an honest user, the question of acquiescence or delay or latches will be of no consequence. It may be apposite to advert to the extract reproduced from Halsbury's laws of England Fourth Edition, Vol.24 at paragraph 943, 943 in paragraph-29 of this reported Judgment. In Halsbury Laws of England, it is noted that an injunction may be refused on the ground of the plaintiff's acquiescence in the ::: Downloaded on - 09/06/2013 13:40:55 ::: 91 defendant's infringement of his right. At the same time, it is noted that principles on which the Court will refuse interlocutory or final relief on this ground are the same, but a stronger case is required to support a refusal to grant final relief at the hearing. In other words, inaction of the Plaintiffs at best can be ground to refuse interim relief but a stronger case would be required to support the refusal to grant final relief on that count.
Invoking doctrine of acquiescence is in the nature of forever lost.
holding that a right which once existed is absolutely and In other words, the right in the Plaintiffs is permanently extinguished. However, it cannot be overlooked that the argument of acquiescence is an argument in equity. That argument cannot be heard at the instance of a party who himself has acted dishonestly right from the inception.
71. In the reported decision of the Apex Court in paragraph-33, the extract from the case of K.E.Mohammed Aboobacker(Supra) has been reproduced wherein it is observed that interim injunction will not be granted if the Plaintiffs had delayed interfering until the defendant had built up a large trade in which he has notoriously used the mark. In ::: Downloaded on - 09/06/2013 13:40:55 ::: 92 the present case the Defendants have not placed any material on record to infer that they have in fact built a large trade in the same mark. Reference is also made to observations in the case of Wander Ltd.
Vs. Antox India P.Ltd. reported in (1990) Supp SCC 726, 726 wherein it is observed that the Court in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet already to commence been ig his enterprise or whether doing so in which latter he has case considerations some what different from those that apply to a case where the defendant is yet to commence his enterprise, is attracted.
72. However, in the case of Midas Hygiene Industries (P) Ltd. Vs. Sudhir Bhatia & Ors.reported 2004 3 SCC 90, the Apex Court has authoratively observed that grant of injunction "becomes necessary" if it prima facie appears that the adoption of trade mark itself is dishonest. Even in the case of Ramdev Food Products Pvt.Ltd. V/s.
Arvindbhai Rambhai Patel & Ors. reported in AIR 2006 SC 3304 on which strong reliance was placed by the Counsel for the defendants, it is observed that in ::: Downloaded on - 09/06/2013 13:40:55 ::: 93 case of infringement of trade mark, injunction would ordinarily follow where it is established that the defendant had infringed the trade mark and had not able to discharge its burden as regard the defence taken by it. In the present case I have already found that the justification offered by the Defendants for using the same name and mark is unacceptable. Be that as it may, in Ramdev's case both the decisions of the Apex Court in the case of Power Control Appliances and Midas Hygiene(supra) paragraph-60 have been referred to in the paragraph-58 and 59.
reference is also made to observations In made in Treatise on the Law and Practice of Injunction by Kerr, Sixth Edition, page 360-361, wherein it is observed that mere delay after knowledge of the infringement to take proceedings, not sufficient to call the Statute of Limitations into operation, or where the infringement continues, is not, it seems, a bar to the right of an injunction at the trial. Lapse of time unaccompanied by anything else is, it seems, no more a bar to a suit for an injunction in aid of the legal right than it is to an action deceit. It is further noted that delay may cause the Court to refuse an interlocutory injunction, especially if the defendant has built up a trade in which he has notoriously used the mark.
::: Downloaded on - 09/06/2013 13:40:55 ::: 9473. In the present case as observed earlier, the Defendants cannot take cover under argument of delay and latches of the Plaintiffs having fraudulently adopted similar mark and names of the Plaintiffs after parting from the Plaintiffs' association and then starting parallel association. Moreso because no material is forthcoming as to what extent the Defendants have succeeded in building up its activities by notoriously using the name and mark to the knowledge of the Plaintiffs.
74. It may be useful to also refer to the decision of the Delhi High Court in the case of M/s.Hindustan Pencils Pvt.Ltd. V/s. M/s. India Stationery Products Co. and anr. reported in AIR 1990 Delhi 19. In paragraphs 31 and 32 the Court has observed thus:
"31. Even though there may be some doubt as to whether latches or acquiescence can deny the relief of a permanent injunction, judicial opinion has been consistent in holding that if the defendant acts fraudulently with the knowledge that he is violating the plaintiff's right then in that case, even if there is an inordinate delay on the part of the plaintiff in taking action against the defendant, the relief of injunction is not denied. The defence of latches or inordinate delay is a defence of ::: Downloaded on - 09/06/2013 13:40:55 ::: 95 equity. In equity both the parties must come to the Court with clean hands. An equitable defence can be put up by a party who has acted fairly and honestly. A person who is guilty of violating the law or infringing or usurping somebody else's right cannot claim the continued misuse of the usurped right.
It was observed by Romer,J. in the matter of an application brought by J.R.Parkington and Co.Ltd.(1946) 63 RPC 171 at page 181 that "in my judgment, the circumstances which attend the adoption of a trade mark in the first instance are of considerable importance when one comes to consider whether the use of that mark has or has not been a honest user. If the user in its inception was tainted it would be difficult in most cases to purify it subsequently". It was further noted by the learned Judge in that case that he could not regard the discreditable origin of the user as cleansed by subsequent history. In other words, the equitable relief will be afforded only to that party who is not guilty of a fraud and whose conduct shows that there had been, on his part, an honest concurrent user of the mark in question. If a party, for no apparent or a valid reason, adopts, with or without modifications, a mark belonging to another, whether registered or not, it will be difficult for that party to avoid an order of injunction because the Court may rightly assume that such adoption of the mark by the party was not an honest one. The Court would be justified in concluding that the defendant, in such an action, wanted to cash in on the plaintiff's name and reputation and that was the sole, primary or the real motive of the defendant adopting such a mark. Even if, in such a case, there may be an inordinate delay on the part of the plaintiff in bring a suit for injunction, the application of the plaintiff for an interim injunction cannot be dismissed on the ground that the defendant has been using the mark for a number of years. Dealing with this aspect Harry D. Nims in his "The Law of Unfair Competition and Trade Marks", Fourth Edition, Volume Two at page 1282 noted as follows:
. "Where infringement is deliberate and ::: Downloaded on - 09/06/2013 13:40:55 ::: 96 wilful and the defendant acts fraudulently with knowledge that he is violating plaintiff's rights, essential elements of estoppel are lacking and in such a case the protection of plaintiff's rights by injunctive relief never is properly denied. "The doctrine of estoppel can only be invoked to promote fair dealings".
32. It would appear to me that where there is an honest concurrent user by the defendant then inordinate delay or latches may defeat the claim of damages or rendition of accounts but the relief of injunction should not be refused. This is so because it is the interest of the general public, which is the third party in such cases, which has to be kept in mind. In the case of inordinate delay or latches, as distinguished from the case of an acquiescence, the main prejudice which may be caused to defendant is that by reason of the plaintiff not acting at an earlier point of time the the defendant has been able to establish his business by using the infringing mark. Inordinate delay or laches may be there because the plaintiff may not be aware of the infringement by the defendant or the plaintiff may consider such infringement by the defendant as not being serious enough to hurt the plaintiff's business. Nevertheless, if the Court comes to the conclusion that prejudice is likely to be caused to the general public who may be misled into buying the goods manufactured by the defendant thinking them to be the goods of the plaintiff then an injunction must be issued.
The Court may, in appropriate cases, allow some time to the defendants to sell off their existing stock but an injunction should not be denied." (emphasis supplied) . It will be useful to also refer to the decision of Chancery Division in the case of Willmott Vs. Barber reported in Vol.XV Chancery Division page
96. Principle of acquiescence has been restated in ::: Downloaded on - 09/06/2013 13:40:55 ::: 97 the following words:
"It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? IN the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant's land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff's mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it, but, in my judgment, nothing short of this will do."
75. Suffice it to observe that as the adoption of trade mark and name by the Defendants is not honest and bonafide as has been found earlier, the argument ::: Downloaded on - 09/06/2013 13:40:55 ::: 98 of delay and latches pressed into service by the Defendants does not take the matter any further.
Taking overall view of the matter therefore, I have no hesitation in answering the issue on prima facie case in favour of the Plaintiffs. In fact, the Plaintiffs have made out strong and formidable prima facie case.
76. That takes me to the issue of balance of convenience. In my opinion, the Plaintiffs ought to succeed pressed into even on this issue in relation to the ground service either one of infringement of trade mark or passing off action or for that matter infringement of copyright of the Plaintiffs. In any case, the Plaintiffs ought to succeed in relation to the grievance of the Plaintiffs that the Defendants are unscrupulously issuing publication so as to sully the huge reputation of the Plaintiffs. The Plaintiffs having made out case of infringement of trade mark, injunction would ordinarily follow as the Defendants have not been able to discharge their burden. In fact, the defence of the Defendants is more of peripheral issues than of substance. The substance of the matter is that the Defendants have fraudulently and dishonestly adopted the trade mark, name and emblem of the Plaintiffs. Suffice it to ::: Downloaded on - 09/06/2013 13:40:55 ::: 99 observe that even the issue of balance of convenience deserves to be answered in favour of the Plaintiffs.
77. Insofar as the issue of irreparable loss or injury is concerned, it is held by the Apex Court in the case of Ramdev Food Products(supra) that when a prima facie case is made out and balance of convenience is in favour of the Plaintiffs, it is not necessary to show more than loss of good will and reputation to fulfil the condition of irreparable injury.
It is further observed that in fact if first two pre-requisites are fulfilled, in trade mark the actions irreparable loss can be presumed to have taken place. It is further held that the expression "irreparable injury" in that sense would have established injury which the plaintiff is likely to suffer. Accordingly, even this issue will have to be answered in favour of the Plaintiffs.
78. For the reasons mentioned in the earlier part of this Judgment, the Plaintiffs, in my opinion, are entitled for interim relief of injunction in terms of prayer clauses (a) to (e) and (g) and (h). The Plaintiffs have asked for other relief of appointing Court Receiver to seize the infringing articles referred to in the prayer clause (f). However, in ::: Downloaded on - 09/06/2013 13:40:55 ::: 100 view of the order of injunction passed, it may not be necessary to appoint Court Receiver. At the same time it is made clear that I am not dwelling upon the question whether it is just and proper to appoint Court Receiver in the fact situation of the present case. Instead, that question is left open to be considered on its own merits in the event the Plaintiffs take recourse to application praying for that relief by pointing out the necessity of doing so in case of any further development. Suffice it to observe that for the time being, order of injunction would subserve the interest of justice.
79. Accordingly, this Motion is made absolute in terms of prayer clause (a) to (e), (g) and (h) with costs. The above said prayer clauses read thus:
"(a) that pending the hearing and final disposal of the suit the Defendants by themselves, their Office bearers, servants, agents and Associate Clubs be restrained by an Order and interim injunction of this Hon'ble Court from, directly or indirectly, using in any manner in relation to goods and/or services or as a name or part of trade name or Club name, or organization name, covered by the Plaintiffs' registered trade marks, such as, "LIONS" "LIONS INTERNATIONAL", "LIONS CLUB INTERNATIONAL", "LEO", "LEO CLUBS", device of "LIONS" and all other trade marks and/or service marks particularised in Exhibit "G" and Exhibits "F-1 to F-68" to the Plaint and/or from using ::: Downloaded on - 09/06/2013 13:40:56 ::: 101 the impugned label being Exhibit "EE"EE" and Exhibit "FF FF"
FF to the Plaint or any other deceptively similar label or emblem and/or device of "LION" or word "LION" or "LIONS" so as to infringe the Plaintiffs' registered trade marks particularised in Exhibits "F-1 to F-68" and Exhibit "G" to the Plaint.
(b) that pending the hearing and final disposal of the suit the Defendants by themselves, their Office bearers, servants, agents and Associate Clubs be restrained by an Order and interim injunction of this Hon'ble Court from using in any manner the word "LION" or "LIONS" or "LEO" or "LEOS" or "LIYOS", "LIONESS" or "BHARATIYA LIONS" or "INDIAN LIONS" or "LIONS INDIA" or "NATIONAL LIONS" or "SEVA LIONS" or "LIONSANSKRUTI" or any other trade mark or service mark or Association name which is identical with or deceptively similar to or a deceptive variation of the Plaintiffs trade marks and names, Association name, trade name or trade mark or service mark such as LION, LIONS, LEO, LIONESS and the like and/or from using the impugned emblem or device as depicted in Exhibit "EE" and Exhibit "FF" to the Plaint or any device of a "LION" or "LIONESS" or any other device or emblem which is identical with or deceptively similar to the Plaintiffs emblem or device as set out in para 28 and Exhibit "K" to the Plaint, so as to pass off or likely to pass off and/or enable others to pass off the Associations or Clubs or Organizations of Defendants and/or their Associate Clubs or activities, their services and business of the Defendants as and for that of the Plaintiffs or Plaintiffs Chartered Clubs or as in some ways connected with the Plaintiffs.
(c) that pending the hearing and final disposal of the suit the Defendants by themselves, their Office bearers, servants, agents and Associate Clubs
i) be restrained by an Order and interim injunction of this Hon'ble Court from using, directly or indirectly the word "LION" and/or "LIONS", "LEO" and/or "LEOS", "LIYO"
::: Downloaded on - 09/06/2013 13:40:56 ::: 102and/or "LIYOS" and/or LIONESS and/or the combination of the words "BHARATIYA LIONS" and/or "INDIAN LIONS" and/or "LIONS INDIA" and/or "NATIONAL LIONS" and/or "SEVA LIONS"
and/or "LIONSANSKRUTI" or any other trade mark of the Plaintiffs as their e-mail address or part of their e-mail address and/or their domain name and/or part of their domain name or in any way be inserted in any of the websites so as to pass off or likely to pass off and/or enable others to pass off the Association of the Defendants and/or their Associate Clubs and/or the activities, services and business of the Defendants and/or their Associate Clubs as and for that of the Plaintiffs or Plaintiffs' Chartered Clubs or in some way connected with the Plaintiffs;
and
ii) be ordered forthwith to take
all necessary steps to have the
registration of the e-mail address being [email protected] of their head office at Jabalpur or and other e-mail address and/or any of the sites of the Defendants having the deceptively similar name to the Plaintiffs cancelled forthwith by the concerned Authorities;
(d) that pending the hearing and final disposal of the suit the Defendants by themselves, their Office bearers, servants, agents and Associate Clubs be restrained by an Order and interim injunction of this Hon'ble Court from reproducing the original artistic work of the Plaintiffs as depicted in Exhibit "K" to the Plaint in any material form and/or communicating the work to the public and/or issuing copies of the work to the public and/or from substantially reproducing the artistic works as has been done by the Defendants as depicted in Exhibit "EE" and Exhibit "FF" to the Plaint or in any other form depicting the logo of the LION or the like species so as to infringe the ::: Downloaded on - 09/06/2013 13:40:56 ::: 103 copyright the Plaintiffs have in the said original artistic work as depicted in Exhibit "K" to the Plaint.
(e) that the Defendants by themselves, their office bearers, servants, agents and Associate Clubs be restrained by an Order and perpetual injunction of this Hon'ble Court from reproducing the literary work the Plaintiffs have in their Purposes and Objectives of their Constitution and By-Laws as depicted in Exhibit "B" and "B-1" to the Plaint or in any material form and/or communicating the work to the public and/or issuing copies of the work to the public and/or from substantially reproducing the literary work of the Plaintiffs as well as the Club names of the Plaintiffs as has been done by the Defendants as depicted in Exhibit "S" and Exhibit "U" to the Plaint so as to infringe the copyright the Plaintiffs have in the said literary work as depicted in Exhibit "B" and "B-1" to the Plaint.
(g) that pending the hearing and final disposal of the suit the Defendants by themselves, their Office bearers, servants, agents and Associate Clubs be restrained by an Order and interim injunction from using a confusingly similar Organisation name and misrepresenting to the public that they are "LIONS" or "INDIAN LIONS" or "BHARTIYA LIONS"
and by such misrepresentations raising funds for their own benefits and also attracting members by such misrepresentations and furthermore hindering the Plaintiffs benevolent activities on account of the negative propaganda publicized by the Defendants about the Plaintiffs Clubs and their services.
(h) that pending the hearing and final disposal of the suit the Defendants by themselves, their Office bearers, servants, agents and Associate Clubs be restrained by an Order and interim injunction from defaming and sullying the impeccable reputation earned by the Plaintiffs by making speeches and publishing articles insinuating that there is flight of substantial amount of Indian money being transmitted from India to the Head ::: Downloaded on - 09/06/2013 13:40:56 ::: 104 Quarters in USA by the Plaintiffs, when in reality it is a nominal amount, and furthermore from publishing defamatory Articles in Newspapers and Circulars and other material without just cause or excuse, thereby subjecting the Plaintiffs to hatred, ridicule and contempt and/or likely to subject the Plaintiffs to hatred, ridicule and contempt, without any lawful justification or excuse and further prejudicing the Plaintiffs in the way of their social service activities and furthermore indulging in such acts of character assassination of the Plaintiffs.
80. Ordered accordingly.
(A.M.KHANWILKAR,J) ::: Downloaded on - 09/06/2013 13:40:56 :::