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5. The only submission of the petitioners addressed by the counsel is that the Arbitral Tribunal while allowing the claim of the respondents has restrained the petitioners from directly or indirectly marketing, selling, advertising or dealing with wall clocks and timepieces by using brand name AJANTA with all its variants including AJANTA QUARTZ, although the respondents' original claim was to seek inter alia permanent injunction restraining the petitioners herein (original respondents) from manufacturing, marketing, and/or selling the products under the brand name "AJANTA" in specific performance of the Memorandum of Understanding dated 21st July, 2004 (hereinafter referred to as "MOU") for wall clocks, time pieces and other products mentioned in prayer clause of the claim statement. The relief granted to the respondents by the learned Arbitrator while rejecting the counter claim of the petitioners which was confined to AJANTA QUARTZ is not correct as in the counter-claim filed by the petitioners before the learned Arbitrator, it was the case of the petitioners that trademark "AJANTA" and "AJANTA QUARTZ" are separate and distinct. Despite of fact that as per the MOU, the trademark "AJANTA" was permitted to be used for a limited period of time, but the respondents with malafide intention took benefit of the MOU and started using trademark/copyright "Ajanta Quartz" on wall clocks and other products illegally. The learned sole Arbitrator has wrongly interpreted the clauses of MOU who failed to notice that even as per the MOU, the petitioners had only permitted to use trademark "AJANTA" for wall clocks and time pieces. If it is a valid assignment as per MOU, under no circumstances, the respondents should have allowed to use the expression "Quartz".

4.24 'QUARTZ' is a hard mineral, often in crystal form, that is used to make very accurate clocks and watches. 'QUARTZ' affixed to 'AJANTA' would mean wall clocks and time pieces carrying the trade name of 'AJANTA' but using a hard mineral often in crystal form which ensures accuracy in time display of such clocks and time pieces. Just as 'QUARTZ' can be suffixed with 'AJANTA', it can as well be suffixed with any other brand or trade name. In short, 'AJANTA QUARTZ' cannot be trade name, trade mark of a brand different from 'Ajanta'. Any view taken otherwise would result in creating confusion and deception.

4.27 AJANTA QUARTZ was always marketed by the Claimants without any objection by the Respondents. (See Q & A No.11 of Jaisukhbhai, quoted in Para 3.3 above). The certificate of registration for trademark "AJANTA" under Class 14 Dt.06.08.1991 being Nos.503244, 555947, 555948, 555949, 555950, 555953 and 555954 expressly contained "AJANTA QUARTZ" in regional languages. AJANTA QUARTZ was therefore always considered an integral part of 'AJANTA" (See Volume CD-1, page8-26). AJANTA QUARTZ always sailed with AJANTA as a singular possibility and convenience. This would further become clear in light of the documents filed by the Respondents/Counter Claimants to show that they manufactured wall clocks and time pieces using "AJANTA QUARTZ" from the 1989 till the year 1995 (See Vol. RD-1, page 7-18). It is also not disputed that in the year 1995, all production by the Respondent No.1 stopped due to family disputes and deadlock. As a result, the Claimant No.1 started manufacturing and selling wall clocks in the year 2000 and has been selling the same till date (See VolumeCD-1, pages 125-128). It also cannot be disputed that the Respondents did not manufacture wall clocks or time pieces from 1995 till 2012 as the same were launched for the first time in May 2012 (See Volume CD-1, page 353). The question of AJANTA QUARTZ having been actually used by the Respondents for any length of time does not arise. 4.28 Even the trademark certificate for "AJANTA QUARTZ" that has been granted to the Respondent/Counter Claimant on 23.09.2014 contains a specific restriction that the same must be used only in relation to the certificates Nos.503244, 555947, 555948, 555949, 555950, 555953 and 555954 which were given to the Claimant under the MoU. The wall clocks have been sold as "AJANTA QUARTZ" by the claimant ever since 2002 and this has been never objected to. At pg. 21 of the SoD, the Respondents have stated - "The Claimant no.1 & 2 are also creating confusion in the market as regards the two separate and distinct brands AJANTA and ORPAT. Their products carry the mark AJANTA QUARTZ whereas the packaging carries the mark "ORPAT". Apart from the documents, from the pleadings itself it appears that it is more or less an admitted case that the user of AJANTA and AJANTA QUARTZ has been by the Claimants; though the Respondents have qualified their admission by alleging that such use by the Claimants was under

4.48 In my opinion, the MoU so far as it restrains the Respondents from manufacturing the clocks and timepieces is void as being hit by Section 27 of the Contract Act. Manufacturing clocks and timepieces is a lawful activity. By contract such lawful activity being restrained is a restraint volatile of Section 27 of the Contract Act. Moreover, I see no fun in the Claimants seeking a restraint on the Respondents alone when the whole world is free to manufacture wall clock ant timepieces. Just at the Claimants would be facing competition from others, they can also face competition from the Respondents. What is a matter or real concern to the Claimants is the user of the same brand name and same trade name by the Respondents. That is violative of the Intellectual property law. Moreover, it is amusing1 to learn the manner in which the Respondents have obtained copyright of AJANTA QUARTZ. The document brought on record by the Respondents itself goes show that Ajanta Quartz has been written designed in a deceptive way. The word AJANTA is written prominently in big letter; with it is written 'Quartz' in small and subdued letter. From a distance, an unwary customer would read AJANTA and ignore Quartz. This fact situation added with the knowledge that Quartz is a name of technique rather than of a product', 'AJANTA Quartz' if permitted to be used by the Respondents would certainly cause confusion and result in deception to the customers for Ajanta products. Thus, the MoU to the extent to which it prevents the Respondents from manufacturing certain products is void. It is valid and binding to the extent to which it restrains the Respondents from using the brand name and trademark Ajanta with all its variations.