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5. In the plaint it has been stated that the trade mark "Ped Chhap Nawab Dulha Khan" of the plaintiffs- respondents was registered at number 611689 (subsequently corrected as 611389) under the Trade and Merchandise Marks Act, 1958 and the Copyright Act, 1957 and the plaintiff No. 1- respondent Taj Mohammad Khan assigned the said trade mark and Copyright "Ped Chhap Nawab Dulha Khan" to plaintiff No. 2-respondent Mohd. Imran Khan by means of assignment deed dated 15th December, 2003 and since then Mohd. Imran Khan plaintiff No. 2 has been running his business as a assignee of Taj Mohammad Khan (plaintiff No. 1 -respondent). It has also been stated that the plaintiffs have a large volume of sales of their product under the registered trade mark "Ped Chhap Nawab Dulha Khan" which was carved, designed, coloured and written in a distinctive style on the wrappers for many years and their customers as well as the traders have identified and recognized the goods as such being the exclusive merchandise of the plaintiffs and none else. The plaintiffs are the creator and the author of the artistic work, design, style and colours of lettering of the said trade mark and are the legal owners, proprietors and user of the same and they have been continuous user thereof and have thus acquired exclusive right to use its registered trade mark under the Copyright Act in respect with their goods. In the plaint it has also been alleged that the appellant-defendant by using identical and or deceptively similar mark or artistic work as referred to above started his business from February, 2005 which is bound to cause confusion and deception in the mind of unwary class of customers amounting to falsification of plaintiffs' registered trade mark and to cause heavy financial losses to the plaintiffs-respondents to which the appellant-defendant was not entitled to under law. It has also been asserted that purchasers of Khaini and tobacco are mainly illiterate public who are being confused, misled and deceived by purchasing the inferior quality of Khaini and Tobacco manufactured by appellant-defendant knowingly and willingly and without consent of the plaintiffs-respondents and thus the appellant-defendant violated the plaintiffs copyrights in the artistic work, lettering and colouring etc in the registered trade mark and has committed offences punishable under Section 78 and 79 of the Trade And Merchandise Marks Act, 1958 (hereinafter referred to as 'the Act No. 43 of 1985') and Section 63 of the Copyright Act, 1957 and under Sections 420, 485, 486, 487 of the Indian Penal Code. The appellant-defendant did not accede to the request of the plaintiffs-respondents and did not refrain from manufacturing, marketing and trading their products of Khaini and Tobacco with falsified mark "Ped Chhap Nawab Dulha Khan" which was causing irreparable loss and injury whereas on the other hand it did not affect the appellant-defendant at all in any manner. The plaintiffs-respondents alongwith plaint had filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure supported with an affidavit seeking temporary injunction upon which an exparte interim order was granted.

13. It has been further asserted by the learned Counsel for the respondent-plaintiffs that the provisions of Sub-section (1) of Section 27 are not attracted in the present set of facts and circumstances of the case instead the suit is fully maintainable. Section 134 stipulates the forum for institution of infringement proceedings, etc., to be the District Court, which brings the trade marks law in line with the provisions contained in the Copyright Act, 1957, as very often a trade mark is also registered as an artistic work under the Copyright Act. Sub-clause (C) of Clause (1) of Section 134 lays down that no suit for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered shall be instituted in any court inferior to a District Court having jurisdiction to try the suit. Section 135 deals with the reliefs which by way of injunction also may be granted by the courts in the suits for infringement or for passing off referred to in Section 134 subject to such terms, if any, as the court thinks fit and may grant also further relief at the option of the plaintiff, either damages or an account of profits, etc., referred to therein. Sub-clause (b)(i) of Clause (3) of Section 135 further provides that notwithstanding anything contained in Sub-section (1), the court shall not grant relief by way of damages other than nominal damages or on account of profits in any case where in a suit for infringement of a trade mark the defendant satisfies the court that at the time he commenced to use the trade mark complained of in the suit, he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on the register or that the plaintiff was a registered user being by way of permitted use. Reference is made to the provisions of Section 71 under which the applications for registration of certification trade marks shall be moved before the Registrar in the prescribed manner by the person proposed to be registered as the proprietor thereof and Sub-clause (2) of the said Section provides that the provisions of Sections 18, 19 and 22 shall apply in relation to an application under Section 18 subject to the modification that references therein regarding acceptance of an application shall be construed as references to authorization to proceed with an application. Reference of Section 124(5) is also made under which the court is entitled to grant stay in a suit for infringement of a trademark and shall not preclude the court from making any interlocutory order including any order granting an injunction etc. Section 159 deals with repeal and savings clause by which the Trade and Merchandise Marks Act, 1958 has been repealed wherein it has been laid down that the provisions of the Act, 1999 shall apply to any application for registration of a trade mark pending at the commencement of the Act and to any proceedings consequent thereon and to any registration granted in pursuance thereof. This is for safeguarding the existing rights of the respondent-plaintiffs to the continued use of its trade mark.

15. In the case of Indian Shaving Products Ltd. and Anr. v. Gift Pack and Anr. 1999(1) Arb. L.R. 26 in relation with Sections 9, 27 and 105 of the Act No. 43 of 1958, the Court was of the view that for granting an interim injunction the plaintiffs have to establish prima-facie case in their favour and that if the injunction is not granted they are likely to suffer irreparable loss and damages and that would he well nigh impossible to compensate them in terms of money and on the other hand the defendants are not going to suffer any irreparable loss and damages. Accordingly, finding the aforesaid things established by the plaintiffs, the Court restrained the defendants, their servants and agents from selling, offering for sale, advertising directly or indirectly dealing in goods in the said trade mark and from passing of their goods as the goods of the plaintiffs or under any other trade mark which is deceptively similar to the said trade mark, as it was the goodwill of a particular business which was built by a trader by his hard work, labour and the sweat of his brow. The law of passing off came into being to preclude unfair trading and to protect the rights of the traders to the goodwill, which they have developed in their business over a period of time.

16. In the case of Maharashtra Rajya Sahkari Doodh Mahasangh Ltd. v. Meal Vitamin Food Products Ltd. 1999 (1) Arb. L.R. 369 the Bombay High Court held that no trader shall be allowed to trade upon others reputation and goodwill deceptively similar and likely to cause confusion and as the plaintiff was the prior user established passing off and prima facie case in its favour deserves protection of its right of prior user of the trade mark and by virtue of long extensive and continuous use of the said trade name acquired exclusive right to use the said trade name, therefore, the benefit of the name and reputation earned by it cannot be taken advantage by any other trader by keeping the mark and passing off its goods like goods of the said person. In the case of Yahoo !Ine v. Akash Arora and Anr. 1999 (1) Arb. LR 620 in relation with Sections 27 and 106 of the Act No. 43 of 1958, the Delhi High Court held that where the trade mark of a trader acquired distinctive reputation and goodwill and the other person adopted the trade mark deceptively similar and likely to cause confusion then passing off action would be taken against that person and passing off action was maintainable and no man is entitled to carry on his business in such a way as to lead to the belief that he is carrying on the business of another man.