S.S. Khera Vs. Anand Son and anr. - Court Judgment

Excerpt:
it was adjudged under section 62 of the copyright act, 1957, that the court in whose jurisdiction the plaintiff resided would have the jurisdiction to entertain the suit for infringement of the copy right - - however, till date you have failed to pay the outstanding royalty an interest thereon nor have entered into any agreement and, thereforee, the user of registered trade name and mark 'snowhite' by you is illegal and malafide. 18. in case of breach of any of the covenants by the licensee, the licensor will intimate specifically to the licensee, the breach complained of and call upon him to remedy the same within a month. i fail to see how that section helps the defendant. (7) the principles relating to the grant of injunction are well settled by this court in century traders v. (8) on the facts and circumstances of this case, i am satisfied that the plaintiff has made out a very strong prima facie case and the balance of convenience is in his favor.k. ramamoorthy, j. (1) the plaintiff has filed a suit for injunction restraining the defendant from dealing in dry cleaning business or in any other business under the name snowhite drycleaners or any other trade name identical/deceptively similar to the plaintiff's trade name snowhite. in i.a. 3503/94 the plaintiff has prayed for interim orders. (2) the case of the plaintiff tersely stated is that on 20.1.1976 there was an agreement between the plaintiff and the defendant in and by which the plaintiff granted license to the defendant to use the name in ghaziabad on payment of royalty and the defendant had been paying the royalty to the plaintiff continuously and the plaintiff has filed letters from 1984 onwards showing the attitude of the defendant accepting the license and paying the royalty to the plaintiff. on 24.4.1982 the plaintiff issued a notice to the defendant stating, inter-alia, that the defendants had committed breach of the agreement dated 20.1.1976 and that he should immediately stop and close down the dry cleaning business being carried on at r-11/13, raj nagar, ghaziabad under the name and style of m/s. snowhite drycleaners and informing the defendant that if he did not comply with the demand appropriate legal action will be taken. on 11.8.92 the defendant replied stating 'we are authorised licensee of you paying royalty regularly but due to undermentioned reasons we could not pay you royalty for the last five years.' in the end the defendant stated 'in the mentioned circumstances, i could not make payments of royalty to you for which i feel sorry. now i want to pay the balance royalty and want to a new agreement also. i hope by going through all the mentioned facts you will come to know my problem and the reason of delay in paying royalty to you.' on 11.6.1993 the plaintiff issued notice to the defendant stating, inter-alia, 'that you vide your letter dated 11th august, 1992 promised to pay the balance royalty and wanted to renew the agreement with our client. however, till date you have failed to pay the outstanding royalty an interest thereon nor have entered into any agreement and, thereforee, the user of registered trade name and mark 'snowhite' by you is illegal and malafide. under the circumstances, you have become liable to pay our client a sum of rs. 103125.00 (rupees one lac three thousand one hundred twenty five only) up to june, 1993, being the royalty/license fee along with interest at the rate of 10 per cent per annum till realisation. however, our client reserves their right to initiate appropriate proceedings against you for the infringement of their registered trade mark and name which you please note.' there was no reply. on 7.4.1994 the plaint in the suit was presented. learned counsel for plaintiff brought to my notice clauses 1, 17, 18, 19, 20, and 21 of the agreement. those clauses are in the following terms :- '1.the licensor hereby grants license to the licensee for the use of his, licensor's, trade name 'snowhite' to be used for his. licensee's business of dry cleaning at ghaziabad covering the areas ghaziabad town only. at present the licensee has two showrooms in the said area located at navyug market and vivek vihar. the licensee shall not without permission in writing of the licensor, close any of the showrooms or increase the number thereof. 17. the licensee shall adopt at his own cost the stationery, containers, pamphlets etc. as used by the licensor. the blocks for the same can be had from the licensor but on the actual cost. the rates to be charged by then licensee shall be with the approval of the licensor. the licensee shall not extend his business of dry cleaning to any other place except with the permission in writing of the licensor; 18. in case of breach of any of the covenants by the licensee, the licensor will intimate specifically to the licensee, the breach complained of and call upon him to remedy the same within a month. in case of his. licensee's, failing therein, the licensor shall be within his right to cancel the license and call back his trade name. in that case the licensee will desist immediately from using the licensor's trade name for his business of dry cleaning, or any other business in which he engages himself or is engaged already. decision of the licensor about the proper remedying of the breach shall be final and shall not be questioned anywhere. 19. the licensee hereby undertakes that he shall, on the termination of this agreement, not have any right in or claim to the use of trade name 'snowhite' for any business and at any place whatsoever. the licensee further undertakes that in case of termination of this agreement with the afflux of time or otherwise occasioned, he, the licensee, shall not engaged himself in the business of dry cleaning at any place under any name for a period of six months. 20. it is agreed between the parties that to begin with this agreement shall last for five years with effect from the party's signing. thereafter the parties can by a mutual agreement on the same terms and conditions or on any other terms to be mutually settled extend the period as agreed upon. 21. for all purposes, this agreement shall be deemed to have been executed in delhi. any differences arising under or by virtue of this agreement between the parties shall be subject to the jurisdiction of delhi court alone.'(3) on the basis of the above clauses of the agreement, the learned counsel for the plaintiff contended that he is the owner of the copyright of the trade mark cannot be disputed by the defendant because he is only a licensee and he can not claim any independent right in the trade mark and the copyright and the first user should be protected. he also contended that once by virtue of clause 18 the license was terminated the defendant would cease to have any right to carry on the business under the trade mark and the copyright of the plaintiff. he relied upon the decision of this court reported in k. chandu lal, bal krishan, madan mohan, mohan lal v. m.c.d. 1978 r.l.r. 278, which arose under the easements act with reference to immovable property. the principles would apply to the facts of this case also. the learned counsel for the defendant contended that this court has no jurisdiction to entertain the suit because no part of the cause of action arose within the jurisdiction of this court and admittedly the defendant is carrying on business in ghaziabad, outside the jurisdiction of this court, and the plaintiff is guilty of delay and latches in approaching this court. the learned counsel for the defendant referred to the decision of this court reported in lok nath prasad gupta v. bijay kumar gupta 1995 d.l.t. 502. the principles laid down therein does not apply to the facts of this case. (4) under section 62 of the copyright act the court within whose jurisdiction the plaintiff is residing will have jurisdiction. under section 20 of the code of civil procedure also this court will have jurisdiction to entertain the suit because the agreement was entered into between the parties at delhi, within the jurisdiction of this court. learned counsel for the plaintiff relied on glaxo operations uk ltd. v. middlesex (england) and others, : air1984delhi265 . (5) i am of the view that the argument on behalf of the defendant that this court has no jurisdiction can not at all be accepted. (6) the learned counsel for the defendant also referred to section 105 of the trade & merchandise marks act. i fail to see how that section helps the defendant. the learned counsel for the plaintiff also relied upon the case reported in the tata oil mills co. ltd. v. hansa chemical pharmacy 1979 del 236 , the tata iron & steel co. ltd. v. mahavir steel and others : 47(1992)dlt412 and tata oil mills company ltd., delhi v. reward soap works, : air1983delhi286 to show that under section 62 of the copyright act the plaintiff is within its rights in instituting the suit in this court. (7) the principles relating to the grant of injunction are well settled by this court in century traders v. roshan lal duggar & co. and others, : air1978delhi250 , b. k. engineering company, delhi v. u.b.h.i. enterprises (regd.), ludhiana and another, : air1985delhi210 and in other cases and, thereforee, i need not advert to the principles again. (8) on the facts and circumstances of this case, i am satisfied that the plaintiff has made out a very strong prima facie case and the balance of convenience is in his favor. relating to the question of delay, it has been laid down in m/s. hindustan encils pvt. ltd. v. m/s. india stationery products co. andanother, : air1990delhi19 that unless there is any inordinate delay or laches or acquiescence the plaintiff can not be non-suited. i am in respectful agreement with the view taken by the learned single judge. thereforee, in the instant case, the plaintiff can not be non suited on the ground of delay. (9) for all these reasons, the ad-interim injunction granted on 19th of april, 1994 is made absolute. i.a. is disposed of. there will be no order as to cost. list the case before j/r for admission and denial of documents on 24th of november 1995.