JUDGMENT
B.N. Kirpal, J.
1. This order will dispose of the application under Order 39 Rules 1 and 2 CPC filed by the plaintiff and the application under Order, 39, Rule 4 CPC filed by the defendants. Briefly stated the facts are that the plaintiff had filed a suit alleging that it is the owner of the Mark Anil and that the defendant is passing off its goods which are similar to those of the plaintiff and selling the same under the Mark Anil.
2. An ex-parte injunction was issued restraining the defendants from using the Mark Anil. Written statement was filed by the defendant in which it was contended that there was originally a firm called National Industries of which Shri Pritam Dass was one of the partners. It is this firm which is alleged to have used the mark Anil for the first time, and the further allegation of the defendant is that the wrapper was also devised by this firm. It appears that this firm continued till 1977 when it was dissolved.
3. During the pendency of this suit the mark Anil has been registered with the Registrar of Trade Marks by the plaintiff in respect of sic territories, namely, Madhya Pradesh, Punjab and Haryana, Jammu and Kashmir and Union Territories of Chandigarh and Delhi, after the registration of the plaintiff, the said Mark has also been registered in favour of the defendant. But it is restricted to the Union Territory of Delhi.
4. In respect of the Union Territory of Delhi, therefore, the marks of both the plaintiff and the defendant are registered. The Mark being Anil. This being so, the question of the defendant being injunction from using the Mark Anil in respect of the Union Territory of Delhi does not arise. The injunction to this extent, is therefore, vacated.
5. In respect of the other territories for which the registration has been granted to the plaintiff Mr. Anoop Singh, learned counsel for the defendant states that his clients will not sell its products under the Trade Mark Anil in those territories. This undertaking is recorded, and the injunction to this effect is confirmed.
6. Two more questions arise for consideration One is the use of the Mark in the territories of which neither of the parties have a registered Trade Mark. The case of the plaintiff is one of passing off as regards the rest of the territories are concerned. According to the plaintiff it had started using the Mark Anil since 1972, and the defendant had started using the Mark only in the year 1977. the case of the defendant on the other hand is that Mr. Pritam Dass, who is the proprietor of the defendant was a partner in the National Industries and this partnership firm had been using the Mark in question earlier than 1972. Further case of the defendant is that this Mark was used at least till 1977 by the National Industries and it is thereafter that Mr. Pritam Dass started his independent business. According to the defendant it was in the year 1967 that a son was born to Mr. Pritam Dass who was named Anil Kumar and the Mark Anil was devised thereafter.
7. It is not in dispute that the firm National Industries existed earlier in point of time than the plaintiff firm. The defendant has placed on record the plastic envelopes of National Industries, which envelopes are similar to the ones used by the plaintiff as well as the defendant. Prima facie, it would appear to me, therefore, that in point of time the earliest user was by the National Industries. Thereafter, possibly the plaintiff started using the Mark Anil since 1972 and the defendant had started using the mark independently in the year 1977. The question which arises is can it be said that Pritam Dass was not using the Mark earlier than 1972 when Pritam Dass was a partner of the firm which was admittedly using the mark earlier than 1972. As at present advised, it will not be proper for me to hold that Mr. Pritam Dass was not using the Mark earlier than the plaintiff at present advised, I do not think the injunction in respect of the territories other than the ones covered by the registered Mark of the plaintiff should be continued. In my opinion, the interest of the plaintiff would be amply safeguard by the defendant being directed to file in Court every half year as statement of sales made by it in all the territories in which it marks sales.
8. The net result, therefore, is that the injunction is confirmed only with respect to the territories of Madhya Pradeh, Rajasthan, Punjab and Haryana, Jammu and Kashmir and Union Territories of Chandigarh and the injunction regarding the rest of territories is vacated, subject to the condition that the defendant will furnish, as already directed above, the statement of sales made by it every half year. The application stand disposed of.