TTK Textiles Ltd. vs Seagull Clothing (Pvt.) Ltd. and Another

Shivaraj Patil, J.—The plaintiff in C.S.No. 6 of 1997 has filed these appeals aggrieved by the judgment and order dated 18.2.1997 passed

by the learned single Judge dismissing O.A.Nos. 7, 8 and 9 of 1997 and allowing application Nos. 284 to 289 of 1997. The parties will be

referred to in this Judgment as they are arrayed in C.S.No. 6 of 1997 for convenience.

The facts briefly stated, for the purpose of disposal of these appeals, are the following:-

The plaintiff has filed the said suit C.S.No. 6 of 1997 seeking the relief of -

(a) Permanent injunction restraining the defendants by themselves, their directors, servants, agents, heirs, legal representatives, assigns, distributors,

stockists, representatives or any of them from in any manner infringing the plaintiff''s copyright in artistic work ''SEAGULL'' by use of an identical

artistic work SEAGULL or any other artistic work which is a substantial reproduction of plaintiff''s artistic work SEAGULL or in any other manner

whatsoever;

(b) grant of perpetual injunction restraining the defendants or others claiming under them from in any manner passing off or enabling others to pass

off the defendants goods as and for plaintiff''s goods by use of trade mark SEAGULL or any mark similar to plaintiff''s mark SEAGULL, or in any

other manner whatsoever;

(c) grant of perpetual order and injunction restraining the defendants or claiming under them from in any manner selling, assigning, licensing,

disposing of and/or in any manner dealing with artistic work and trade mark SEAGULL including their stylized script which exclusively belongs to

plaintiff or any other artistic work or trade mark deceptively similar thereto or in any other manner whatsoever:

(d) ordering to surrender to plaintiff for destruction of all goods, containers, cartons, labels, prints, blocks, dyes, plates, moulds, stencils and other

materials bearing the artistic work and trade mark SEAGULL or any artistic work which is a substantial reproduction of plaintiffs artistic work

SEAGULL; and for other consequential reliefs.

O.A.S.Nos. 7, 8 and 9 of 1997 were filed by the plaintiff seeking grant of temporary injunction and ad interim injunction restraining the

defendants in terms of the prayers made in the plaint. Applications 284 to 286 of 1997 were filed by the defendants for vacating the interim

injunction granted in O.A.Nos.7 to 9 of 1997 on 8.1.1997, and applications 287 to 289 of 1997 were filed by the defendants for suspension of

interim order granted in O.A.Nos.7 to 9 of 1997.

The learned single Judge, after hearing both the parties, by the common Judgment and order dated 18.2.1997, dismissed O.A. Nos. 7 to 9 of

1997, and ordered O.As. 284 to 286 of 1997. In other words the interim orders of injunction granted in O.A.Nos. 7 to 9 of 1997 were vacated.

In the light of the said order, no orders were considered necessary in Application Nos. 287 to 289 of 1997, and they were closed by the common

Judgment and order dated 18.2.1997. It is this common judgment and order which is called in question in these appeals.

The plaintiff states that they are manufacturing and selling furnishing fabrics, under garments, hosiery, wearing apparel and other articles under

several trade-marks and artistic works. Several of their trademarks and artistic works are registered under the Trade and Merchandise Marks

Act, 1958, as well as the Copyrights Act, 1957. Their undergarments sold under various artistic works and trade marks are very popular amongst

the trade and public in India and abroad. They are the proprietor of the artistic work and trade mark SEAGULL with the devise of Seagull bird

and wavy lines. The trade mark was created by Trikaya Gray Advertising India Limited under a contract of service and instructions. Along with the

trade mark SEAGULL an artistic work was given by the plaintiff to Trikaya in February, 1996 and the Artistic work was created and handed over

to the plaintiff in March, 1996. The trade mark was invented by the plaintiff, and Trikaya created the artistic work under a contract of service for

valuable consideration, and thus the copyright in the artistic work Seagull vests in the plaintiff.

The plaintiff first published the said artistic work and trade mark in March, 1996, and the same was meant for use in under-garments, vests and

briefs for Indian market, and markets abroad, especially Gulf countries, Sri Lanka, Malaysia and Maldives. In November, 1996 the plaintiff came

to know that the defendant was marketing identical goods as that of the plaintiff i.e., its briefs and vests under the artistic work and trade mark

SEAGULL identical in all respects compared to the artistic work and trade mark Seagull of the plaintiff. This amounted to infringement of the

plaintiff''s copyright.

Defendant No. 2 was employed as Senior Executive with the plaintiff between September, 1992 to July, 1996. He left the services of the

plaintiff company clandestinely taking away with him the art work created for the plaintiff''s artistic work SEAGULL in addition to various other

confidential documents. He has also misused powers vested in him as a senior executive of the plaintiff company. Now he has started a rival

business to manufacture and sell vests and briefs using the plaintiff''s trademark and artistic work. The second defendant is behind the establishment

of the first defendant of which his wife is the Managing Director. The plaintiff was about to market their products under the trade mark and artistic

work SEAGULL but had to keep it in abeyance because the defendants were passing off their products as that of the plaintiff. Hence the suit was

filed. As already stated above, O.A. Nos. 7 to 9 of 1997 were filed for grant of interim injunctions pending the suit. Interim injunctions were

granted on 8.1.1997 in O.A.Nos. 7 to 9 of 1997.

The defendants filed common counter affidavit denying the averments made by the plaintiff. They submitted that they are the proprietors of the

trade mark SEAGULL and they have copyright of the same. The first defendant requested Alwin Commercial Printers to design the artistic work

of SEAGULL on 15.12.1994. The said printers produced the artistic work on 9.1.1995, and thereafter the defendants approved and accepted

the same, and the plaintiffs themselves have purchased the defendants products with the trade-mark SEAGULL. Hence it was not open to the

plaintiff to claim proprietorship. The defendants took up a contention that this Court has no jurisdiction to entertain the suit on the short ground that

the bill, Document No. 13, filed along with the plaint was obtained from a shop at West Tambaram which is not within the jurisdiction of this

Court.

The defendants further contended that when the plaintiff has stated in paragraph 16 of the plaint that they had to keep in abeyance its launch of

vests and briefs bearing the trade mark and artistic work SEAGULL, and when they are not carrying on any business with the disputed trademark,

they are not entitled for an order of injunction. On merits also they contended that the first defendant is the proprietor of the trade mark by virtue of

the documents dated 8.11.1995 and 23.4.1996; the plaintiff had purchased the goods from the defendants with their trademark and as such it is

not open to the plaintiff to seek an order of injunction. Further the plaintiff has no business in India, and as such it is not open to the plaintiffs to

seek an order of injunction.

The plaintiff contended that they have their office at Madras and they are having business in India in respect of other wearing apparels except

vests and briefs; In fact in the plaint it has been pleaded that the plaintiff''s undergarments sold under various artistic works and trade marks are

very popular amongst the trade and public in India and abroad. Because the defendants have launched their products under the disputed trade-

mark the plaintiff kept launching their products in abeyance. Hence the suit was maintainable. It was also contended that the second defendant was

originally employed by the plaintiff and as already stated above, he started the rival business by using the trade mark that had been designed for

plaintiff. He himself had acted on behalf of the plaintiff in getting the trade mark approved.

The learned single Judge, after considering the contentions and submissions made on behalf of the parties, passed the impugned Judgment and

order.

The learned counsel for the parties made similar submissions before us elaborating the contentions raised before the learned single Judge.

Shri C.A.Sundaram, learned senior counsel, at the outset, submitted that the plaintiff is not pressing at this stage, the order of injunction in

regard to passing off, inasmuch as this plaintiff has not yet launched its products. He further submitted that having regard to the conduct of the

second defendant and the material placed before the learned single Judge, interim injunction granted in favour of the plaintiff ought to have been

made absolute restraining the defendants from infringing the plaintiff''s copyright and artistic work SEAGULL by use of an identical artistic work

SEAGULL. He took me through the various documents in support of his submissions.

On the other hand Shri. U.N.R. Rao, learned senior counsel submitted that the suit itself is not maintainable as this Court has no jurisdiction in

view of the Bill, document No. 13, obtained from a shop at West Tambaram which place is not within the jurisdiction of this Court; even there was

no cause of action for filing the suit and on that ground also the suit is not maintainable. In his arguments he supported the Judgment and order

under appeal, adding that the learned single Judge, having regard to all aspects, in his discretion, has vacated the interim injunction granted rightly.

Both the learned senior counsel made elaborate submissions pointing out to various provisions in the Trade and Merchandise Marks Act and

the Copyright Act, and also referred to the pleadings and documents. In our view, the rival contentions of the parties will have to be essentially

dealt in detail in the suit on the basis of the issues that arise for consideration. Hence we do not think it necessary to deal with them elaborately in

these appeals. It is not disputed that the plaintiff has not yet launched its products in vests and briefs bearing the trade mark and artistic work

SEAGULL as is clear from the averment made in paragraph 16 of the plaint itself. It is also admitted that the defendants are already selling their

products by using the disputed trademark.

There is a serious dispute between the parties as to the proprietorship over the trade mark. The disputed questions as to the trade-mark could

be effectively and properly decided in the suit itself based on evidence. When the plaintiff has not yet launched its products bearing the disputed

trademark and artistic work SEAGULL, it cannot be said that the balance of convenience is in favour of the plaintiff. Normally the purpose of

granting an order of injunction is to maintain the status-quo as existing on the date of the suit as far as possible. More so, in this case, when the

serious disputed questions as to proprietorship of trademark and artistic work have arisen, it may not be appropriate to grant an order of injunction

in favour of the plaintiff when the plaintiff has not yet launched its products.

The learned single Judge having regard to all aspects, in his discretion, has vacated the interim injunction granted earlier. The learned Judge has

also safeguarded the interest of the plaintiff by directing the defendants to file statement of accounts with regard to their business once in a month

before this Court after serving a copy on the learned counsel for the plaintiff. In case the plaintiff succeeds in the suit he will be entitled for damages

as observed by the learned single Judge. The exercise of discretion by the learned single Judge in vacating the interim injunction granted earlier

cannot be said to be either perverse or arbitrary or capricious so as to interfere with the said discretion.

Even assuming that two views are possible, it is well settled that in matters like this, in appeals, the discretionary orders are not interfered with

unless the orders are shown to be either arbitrary, capricious or perverse. In this view, having regard to the Judgment and order appeal, we do not

find any good or valid ground to interfere with the same.

In the result, for the reasons stated, the appeals are liable to be dismissed, and accordingly they are dismissed. No costs.