The High Court at Aurangabad reviewed an order denying a temporary injunction in a trademark and copyright dispute between brothers. The court held the application was meritless, noting prior use by both parties and lack of dishonesty.
Application for review stands rejected; impugned order upholds.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 ReviewApln 56/2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION NO. 56 OF 2014 in Appeal From Order No. 108 of 2013
Shirishkumar s/o Mukundrao Deo, Age 50
years, Occupation Business, Prop. Of
ABC Drycleaners and Washers, R/o: B/A
101, Atharva Royal, Behind Hotel
Nishant Part, Beed By-pass Road,
Aurangabad
Applicant
V E R S U S
1 Ashwinkumar s/o Mukundrao Deo, Age 58 years, Occupation Business,Respondent
2Shamindra s/o Shirish Pathak, Age 32
years, Occupation Business,
BothR/o:J/2,Chetnanagar,
Aurangabad
Shri Rameshwar F. Totala, Advocate for the applicant
Shri V.J. Dixit, Senior Advocate with
Shri M.L. Sangeet, Advocate for the respondents
CORAM : A. V. NIRGUDE, J.
DATE : 24th July, 2014
PER COURT :
1.Learned counsel for the applicant tried to
assert that the order under challenge is susceptible
to review. He argued that in the facts and
circumstances of the case, mainly since admittedly his
client had registered Art work in 2007, the same work
cannot be used by any third party, and if such work is
used, the same amounted in infringement of copyright,
as contemplated under Section 51 of the Copyright Act.
2 ReviewApln 56/2014
He also asserted that in such a case an order of
temporary injunction should fail. While asserting
this, he placed reliance on the judgment of Supreme
Court in the case of Midas Hygience Industries P. Ltd.
vs. Sudhir Bhatia and others [2004 [73] DRJ 647].
Paragraph no.5 of this judgment reads as under:-
“5. The law on the subject is well settled. In cases of infringement either of Trade Mark or of Copyright normally an injunction must follow. Mere delay in brining action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the Mark was itself dishonest.”
2. I have explained facts of the case in my judgment and I have clearly held that I did not find prima facie that use of Mark ABC Drycleaners and Washers etc. by the appellants is dishonest. In the facts and circumstances of the case they are explained in detail in my order. I have held that this Mark was used by both the parties extensively prior to 2007 for many years. So, merely because the Mark is copyrighted in a particular manner, the Mark written in a particular manner is copyrighted in 2007. The owner of the copyright namely the respondent/plaintiff would not be able to prevent it's use by his brother who used this Mark since prior to 2007. As explained in my order, the facts clearly establish that the parties
3 ReviewApln 56/2014
to the suit, who are brothers, used this Mark for
their Trade/business. The Mark ABC Drycleaners and
Washers was their Trade Mark as defined under Section
2-M and 2-ZB of the Trade Marks Act, 1999. The
business of washing clothes is a service as defined
under Section 2-Z of the Trade Marks Act, 1999, as it
involved material treatment and processing. I quite
appreciate the grievance of the respondents/plaintiffs
that the applicant/defendant abruptly started his
business in front of his shop and that caused
unhealthy competition between them. However, this
would not come within the parameters of Section 51 of
the Copyright Act. There is no substance in the
objection. In view of this, application stands
rejected.
SRM/24/7/2014
2 issues framed by the court
Whether the applicant can challenge the lower order via review citing copyright infringement under Section 51 of the Copyright Act.
Whether the respondent brother's prior use of the trademark defeats the copyright claim and the necessity for a temporary injunction.
Colour shows how this judgement treated each authority
Midas Hygience Industries P. Ltd. vs. Sudhir Bhatia and othersExplained¶18
Midas Hygience Industries P. Ltd. vs. Sudhir Bhatia and others [2004 [73] DRJ 647]
3 provisions across 2 enactments
Shirishkumar s/o Mukundrao Deo
Ashwinkumar s/o Mukundrao Deo
Shamindra s/o Shirish Pathak
A. V. Nirude
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court