Gauhati High Court
Bawa Masala Company vs Bawa Masala Co. P. Ltd. And Ors. on 29 November, 2001
Equivalent citations: 2004(28)PTC525(GAU)
Author: Ranjan Gogoi
Bench: Ranjan Gogoi
JUDGMENT R.S. Mongia, C.J.
1. The dispute regarding the use of the trade marks between the present parties was the subject of adjudication before the Delhi High Court in Case No. CM (M) No. 601/2001 (Baba Jagmohan Singh and Ors. v. The Registrar of Trade Marks and Ors.). The said application was disposed of by the Delhi High Court on 16th October, 2001 in the following terms :
"The proprietor of a registered trade mark acquires certain rights in the trade mark which are prima facie different from a mere right to use the trade mark. Counsel for respondents 2 to 5 have submitted at the Bar that they are not opposed to using of the registered trade mark in question by petitioner No. 1 within the limits of the territories allotted to him under the MOU. But they have not stated that other rights which accrued to the proprietor of the trade mark will also be available to the petitioner under the provisions of the Act.
There is prima facie case in favour of the grant of such a stay order. The petitioner will also suffer irreparable loss in case operation of the impugned order of the Registrar is not stayed as he would not be able to exercise the powers of proprietor a registered trade mark. On the other hand, respondents 3 to 5 who have no objection to the user of the registered trade mark by the petitioner No. 1 within the limits of territories allotted to him will not suffer any irreparable loss or injury if the stay is granted. The injury suffered by the petitioner may also not be compensated adequately by costs in case the order of the Registrar remains in operation.
For all the above reasons the operation of the order of the Registrar of Trade Marks dated 13.8.2001 is stayed during the pendency of this petition. At the same time both the parties have admitted that they are bound by the terms of the MOU entered into between them. Therefore, stay granted in these proceedings will be read subject to the terms and conditions of MOU which have been agreed to between the parties and it will not permit the parties to violate the terms and conditions of the MOU dated 17.8.2000 and encroach upon each others territories.
With the above observations the application is disposed of."
The applicants before the Delhi High Court are the Respondents 1 and 2 here in the present appeal. The appellant herein was the respondent before the Delhi High Court in the aforesaid application. In view of the above, we are of the opinion that this appeal as well as the civil suit, irrespective of the allegations and counter allegations made in the civil suit, can be disposed of in the same terms and conditions as contained in the aforesaid order of the Delhi High Court. We order accordingly. The suit and appeal shall stand disposed of in the aforesaid terms and conditions.
2. To avoid any further litigation between the parties it may be observed here that as per the MOU between the parties dated 17.8.2000 the same trade marks can be used by both the parties. However, they can do business only in particular territories mentioned in the MOU. Apart from the above terms there are other terms as well in the MOU. The parties are suspicious of each other though they are real brothers that they will encroach upon each other's territory. One way to avoid that to a great extent is if the parties before us are to mention on the cartons in which spices manufactured by them are packed 'for sale in a particular territory' or 'not for sale in a particular territory'. By the MOU respondent No. 2 carrying on the business in the name of respondent No. 1, has been allowed to sell their products only in the territories of Delhi, Punjab, Haryana, Uttar Pradesh and Union Territory of Chandigarh respondent No. 1 would mention on the cartons in which spices manufactured by it are packed, "For sale only in the territories of Delhi, Punjab, Haryana, Uttar Pradesh and Union Territory of Chandigarh whereas the appellants on their cartons in which the spices manufactured by them are packed would mention, "Not for sale in the territories of Delhi, Punjab, Haryana, Uttar Pradesh and Union of Territory of Chandigarh". This direction is being given, as observed above, to minimise the likelihood of each other encroaching upon the territory of one or the other.
3. We have heard Mr. G.N. Sahewalla assisted by Mr. Mohan Vidhani, Mr. M. Modi and Mr. P. Jha, learned counsel for the appellant and Mr. K. Agarwal, assisted by Mr. D.K. Chomal, learned counsel for the respondents 1 and 2. None appears for respondents 3 and 4 despite service. Name of respondent No. 5 has already been struck off.
4. The appeal and the suit shall stand disposed of accordingly.
5. Let this order be sent to the trial Court for passing formal order in the suit.