R.C Lahoti, J.:— This order disposes of IA No. 16984/92, an application under order 39 rules 1 & 2 cpc filed by the plaintiff seeking temporary injunction against the defendant and IA No. 3370/93 under Order 39 Rule 4 CPC filed by the defendant seeking vacating/setting aside of the ex-parte order of injunction dated 25.8.92 whereby this Court has restrained the defendants, their servants, agents, dealers and representatives from manufacturing, selling, offering for sale or otherwise dealing in exercise books and other stationery books under the trade mark CHETAK and label CHETAK, similar and identical to the trade mark of the plaintiff, till further orders.
2. According to the plaintiff it is a firm engaged in the business of manufacturing and marketing office-files, exercise books and mathematical instruments for last many a years.
3. Since 1971, the plaintiff has been using the trade mark and label CHETAK in respect of exercise books. The plaintiff firm has also used the mark CHETAK in respect of office-files and mathematical instruments. CHETAK is duly registered trade mark of the plaintiff. Also advertised in the trade mark Journal. The label CHETAK is also registered under Copyright Act. In June, 1992, the plaintiff-firm became aware of the defendants manufacturing and selling exercise books under the trade name CHETAK with the same get up, design, placement of words and colour scheme as that of the plaintiff. The defendant has filed false suit under Section 120 of the Trade and Merchandise Marks Act, 1958 and Section 60 of the copyright Act, 1957 against the plaintiff before the Distt. Judge, Jaipur. The suit is pending. The plaintiff has sought for perpetual injunctions protecting trade mark and copy right of the plaintiff, restraining passing of, delivery up and rendition of accounts etc.
4. According to the defendants the plaintiff neither had nor could have had sale of the exercise books in the State of Rajasthan during 1974 to 1991 as it could not have been economic. The defendant-Association was then known as Rajasthan Exercise Book Manufacturers Association (REMA, for short) having adopted trade mark label containing the word CHETAK and the device of a horse and Rana Pratap as its rider, which were approved by State Label Committee for paper distribution. In 1978 REMA was bifurcated into two groups. The separated group adopted the name of Rajasthan Copy Nirmata Sangh (RCNS, for short). In 1979 the two groups having settled their differences, registered Rajasthan Copy Manufacturers Association (RCMA, for short) as a non-trading company which became the proprietor of the said trade mark and label. In 1992 RCMA has applied for registration of CHETAK as its trade mark and label. As CHETAK trade mark and label have been in continuous use of defendant and its predecessor, since 1974, the suit filed by the plaintiff suffers from delay and latches.
5. Both the parties have filed documents. From the documents filed on behalf of the plaintiffs, it cannot be doubted that CHETAK is registered trade mark of the plaintiff in respect of office files, exercise books and mathematical instruments vide certificate dated 27.7.76 The Registrar of Copyrights has registered the label CHETAK vide registration No. A 15872/76. Copies of six bills have been filed which show CHETAK exercise books having been sold by the plaintiff during the period 11.5.87 to 4.6.92 Copy of Trade Mark Journal dated 1st March, 1979 has also been filed.
6. The documents filed on behalf of the defendant go to show the State Level/Committee for Paper Distribution having issued a circular dated 1.2.75 approving the design and colour scheme to be used on CHETAK brand exercise books, as enclosed therewith, for manufacturing and sale of the exercise books by the concerning dealers. On 19.4.75, the Association approved set of coloured blocks for printing cover paper of CHETAK Exercise Books. There are several other documents filed which go to show CHETAK trade mark and CHETAK label with the device of a Horse with Rana Pratap riding thereon having been continuously used by the defendant or its predecessors as set out in the written statement in the manufacture and sale of the exercise books.
7. Though the trade mark and the label CHETAK are registered in the name of the plaintiff both under the Trade and Merchandise Act, 1958 and the Copyright Act, 1957 there is no satisfactory evidence adduced by the plaintiff as to their actual user. Six bills spread over a period of 5 years between 1987 and 1992 are too scanty an evidence to prove the alleged user by the plaintiff justifying the grant of an injunction. On the contrary, the documentary evidence adduced by the defendant shows beyond doubt, such trade mark and label having been used in Rajasthan by the defendant and its predecessors since 1975.
8. The documents filed by the defendant also go to show that on 23.5.87 a dealer of the plaintiff had served a legal notice on the defendant-Association asking it to desist from using the trade mark CHETAK. There is another letter dated 24.4.91 issued by the Trade Mark Attorney of the plaintiff to members of the defendant-Association against the use of trade mark CHETAK. Thus at least since May, 1987, the plaintiff had known the use of trade mark by the defendant. Still, the suit was filed on 24.8.92 The plaintiff's plea of having gathered knowledge of the defendant committing breach of plaintiff's trade mark and copyright in June, 1992 only does not appear to be correct prima facie. As the suit filed by the plaintiff suffers from delay and laches, the plaintiff is not entitled to the relief of temporary injunction in exercise of discretionary jurisdiction. Prior to the filing of the present suit by the plaintiff, the defendant has filed a suit under Section 120 of the Trade and Merchandise Act and Section 60 of the Copyright Act, 1957. It appears that the present suit has been filed as a counter blast to the suit filed by the defendant.
9. For the foregoing reasons, IA 3370/93 filed by the defendant is allowed and IA 16984/92 filed by the plaintiff is to be rejected. The interim injunction order dated 25.8.92 is directed to be vacated.