Document Fragment View

Matching Fragments

16. Another suit was filed by the petitioner before the Civil Judge, Agra, being suit No. 643 of 1992 against the answering respondent i.e. K.C.T. and C.L. The aforesaid suit was filed for permanent injunction to restrain the respondent No, 3 from using in relation to any IMFL, the said three trade marks/labels or any other mark or marks or labels deceptively similar thereto without obtaining the prior written consent of the petitioner. In this suit the petitioner has claimed itself exclusively and absolutely entitled to the user of the said three trade marks and labels. Further the petitioner has claimed that the agreement inter se between C.L. and the respondent No. 3 cannot defeat the petitioner's exclusive right under the deed of assignment. The petitioner has failed to obtain any interim stay order to the above effect in this suit, although the matter was heard number of times.

6. The assignor further covenants that the Assignee shall have and enjoy quite and absolute possession of the said Trade marks being the subject matter of the said Trade mark applications uninterrupted or disturbed in any manner whatsoever by the Assignor or any person claiming under or through or in trust or the assignor.
7. The assignor agree and undertakes that the Assignor shall not use the said trade marks and/or any other marks deceptively similar in any manner whatsoever to the said trade marks being the subject matter of the said trade mark application in respect of the goods for which the said Trade marks have been used by the Assignor and/or in respect of the goods for which the said Trade mark applications will be granted registration under the Trade and Merchandise Marks Act, 1958."

46. It may further be noticed that there is a negative covenants provided in the agreement that C.L. shall not use said trade marks and/or any other marks deceptively similar in any manner whatsoever to the said trade marks being the subject matter of the said trade mark Application in respect of the goods for which the said Trade marks have been used by the Assignor and/or in respect of the goods for which the said Trade Mark Applications will be granted registration under the Trade and Merchandise Marks Act, 1958, This makes the intention of C.L. further clear that it has transferred all the proprietory rights on trade marks along with the business of manufacturing and sale of IMFL products to the B.D.A. petitioner.

47. The validity of this agreement was considered by Division Bench of Delhi High Court in the judgment dated 11-4-1994 in FAO No. 195 of 1993 and FAO (OS) No. 183 of 1993. FAO No. 195 of 1993 was directed against the order dated 27/28th July, 1992 passed by Smt. R. S. Dalvi, Judge, City Civil Court, Bombay granting an ad interim injunction in favour of B.D.A. and against C.L. restraining C.L. from in any manner directly or indirectly using in relation to any Indian made Foreign Liquors the trade marks and/or labels mentioned in the deed of assignment or any other mark or marks or labels deceptively similar thereto. FAO (OS) No. 183 of 1993 arises from an order dated 25th January, 1993 passed by a learned single Judge of the Bombay High Court in the suit filed by C.L. against B.D.A. and others refusing to grant an ad interim order in favour of C.L. After having considered the matter the Court found that the deed of assignment clearly records the assignment of the three trade marks together with goodwill attached thereto and the business of manufacturing and sale of IMFL products. It further enjoins C.L. to hold the same (the trade marks) unto B.D.A. obsolutety. The Court has further held that prima facie on the basis of the material on record at this stage B.D.A. has been able to satisfy the Court that the Deed of Assignment was duly executed between the parties and was also acted upon and therefore relief on its basis should flow. Therefore the B.D.A. is entitled to the ad interim relief sought by its prayer 'A' of notice of motion No. 3761 of 1992 in the Bombay City Civil Court which is to the following effect :--