The Plaintiff is the manufacturer of pencils and other items of stationery and is carrying on business since the year 1957. The plaintiff is the registered proprietor of trademarks and copyright also. The plaintiff has adopted the trademark NATARAJ with the device of NATARAJ in respect of pencils in the year 1961and since then they have been using the trademark NATARAJ with the device of NATARAJ in a particular designed label having red background and the word NATARAJ written in a particular characteristic style.

The grievance of the plaintiff is that the defendant has copied the getup and colour combination of the plaintiffs cartons. The defendants are selling the scented sticks (Agarbatti), the defendant has adopted the mark NATARAJ and using the same carton with identical colour combination as that of the plaintiff. The case of the plaintiff is that defendant has slavishly copied the plaintiff’s carton and the consumers would be having an impression that the goods of the defendant are that of the plaintiffs because of the aforesaid similarity.

Hon’ble court held that all the features of both the cartons are identical and even colour of side panes of the cartons are of same colour i.e. black. By using trademark NATARAJ it is the registered trademark of the plaintiff, defendant have infringed the plaintiffs trademark as well as copyright in the said product. It is clear that the intention is to make illegal use of the goodwill enjoyed by the plaintiff in respect of its product. The act of the defendant is dishonest and mala fide.

The decree of permanent injunction is accordingly passed restraining the defendants, their agents, servants, dealers stockiest, shopkeepers from manufacturing, offering for sale directly or indirectly dealing in Scented Sticks (Agarbatti) under the trademark NATARAJ and/or from using the packing material/cartons which is similar and clolourable imitation of the plaintiffs packing material/carton.

The plaintiff had filed the suit seeking permanent injunction and rendition of amount against the defendants from using the trading style as “ Creative” it being registered in favour of the plaintiff with the Registrar of trade marks and also the plaintiff being the prior user of this mark in relation to Tours & Travels and allied business since 1977.

The defendant have been carrying on the business since the year 1979 and their annual turn over had touched Rs.100 Crores in the past years and that the plaintiff knowing fully well that the defendants have been carrying on their Tours & Travels business under the trade name “Creative”.

It is pleaded in the application is that the plaintiff obtained ex-parte ad-interim injunction by making false representation and by concealing material facts from the Court giving false impression to the court that the defendants had recently hit upon the trade name of the plaintiff whereas actually the defendants have been in the business since 1979 and to the knowledge of the plaintiff. The plaintiffs have been doing their business activities in Delhi and the defendants have been carrying their business in Mumbai. By taking help form the internet the defendant submits that the word “Creative” being used by various other Tour and Travel companies all over the world.

The Hon’ble Court is with the plaintiff as far as the registration of Trade Mark and its prior user is concerned but defendants too have been using this mark for quite long time and have built up their reputation by doing huge business. It would be the defendants who will suffer irreparable loss and injuries, if they are injucted from carrying on their business with this mark. If prior user favours the plaintiffs, longer user favours the defendants. The injunction order passed by this court is liable to be vacated. Hon’ble Court ordered to dismissing the application of the plaintiff and allowing the application of the defendant.