1. ' MAMOON KAZI, J.---The appellants have called into question the order passed by a learned Single Judge, dated 31-8-1994 granting ad interim injunction in favour of the respondent No,1.
2. ' Suit No,49 of 1994 was filed by the said respondent alleging infringement of trade-mark against the appellants. The said respondent claimed to be the registered proprietor of trade-mark "SHAHZADI PATTI" under Trade-Mark No,58131. In 1975, the appellant No,2, respondent No,1 and their father, Abu Muhammad Khan, had entered into a business partnership under the name of Banaras Tobacco Company. The said trade-mark was got registered in its name by the partnership firm which was subsequently dissolved with effect from 30-6-1987. In the said deed of partnership it was agreed that appellant No,2's father would run the business of Chalia and Pan Masala, respondent No,1 would run the business of Agarbatti while appellant No,2 would run the business of tobacco manufacturing and Zarda. It was further agreed that the two brothers that is to say appellant No,2 and respondent No,1, would use the registered trade-mark on their respective trades with special permission of their father, Abu Muhammad Khan. However, notwithstanding the said agreement, the business was run as a joint family business and it was the case of respondent No,1 that for all practical purposes, he was running the business of Zarda (chewing tobacco). After division of the above business, a private limited company was incorporated under the name and style of "Banaras Tobacco (Pvt.) Limited with the main object of acting as a distributor of the above said business. The said respondent claimed that on 4-11-1989, Abu Muhammad Khan assigned the trade-mark SHEHZADI PATTI in favour of the said respondent by executing an assignment deed in his favour. After such assignment, appellant No,2 secretly filed an application for registration of the said trade-mark in the name of appellant No,1, who is his wife. However, respondent No,1 allowed her to use the said trade-mark as the business was a joint family business which was running smoothly during the life time of the respondents' father. But disputes arose between the parties resulting in closure of business of Zarda in July, 1993. The said respondent then started his business of chewing tobacco by using his registered trade-mark SHEHZADI PATTI in his firm name, Shehzadi Tobacco Company. The goods under the above trade-mark were given to Banaras Tobacco Company (Pvt.) Limited. However, respondent No,1 claimed that he was selling the same product under the registered trade-mark Shahzadi. On account of high quality and reasonable price the said respondents goods under trade-mark SHEHZADI PATTI were popular and under great demand.
3. However, the said respondent came to know that appellants Nos.1 and 2, in order to take advantage of the goodwill and reputation earned by the said respondent, had started manufacturing, selling and offering for sale their own Zarda (chewing tobacco) with the identical brand name SHAHZADI PATTI with the same colour scheme, design, layout, getup and style etc. Which were confusingly similar to that of the said respondent's trade-mark.
4. ' The suit of the said respondent was resisted by the appellants Nos.1 and 2. Their main contention being that the respondent No,1 had got the trade-mark assigned in his favour after the death of his father by deceit and fraud.
5. ' However, the learned Single Judge, on the basis of prima facie evidence, has granted interim injunction in favour of the respondent No,1, and hence this appeal.
6. We have perused the order passed by the learned Single Judge and have also heard the learned counsel respectively appearing for the appellants and respondents in this appeal. The order passed by the learned Single Judge indicates that a prima facie case was found by him in favour of the respondent No,1 as registration of the trade-mark SHEHZADI PATTI under No,58131 stood in the name of the said respondent with effect from 18-7-1993 in view of the assignment deed said to be executed in his favour. The said respondent was also able to produce prima facie evidence before the learned Single Judge which indicated that the said respondent had been selling chewing tobacco under the aforesaid trade-mark from 1993. Further evidence appears to have been produced which showed sales of the said product running to the extent of about Rupees forty lacs.
7. Another sum of Rupees one lac was shown to have been spent on sales promotion activities, publicity and advertisement of the product, etc. The said respondent was also able to produce copies of bills and cash memos etc. Before the learned Single Judge.
8. On the other hand as has been observed by the learned Single Judge, the appellants were unable to show prior user of the said trade-mark by any convincing evidence. We asked the learned counsel for the appellants to refer to such evidence, if any had been produced before the learned Single Judge, but he was unable to refer to any such document. Under such circumstances, the learned Single Judge came to the conclusion that not only the said respondent had been able to establish a prima facie case in his favour but the balance of convenience also lay in his favour, because if the appellants were allowed to infringe the respondent's registered trade-mark, the latter would suffer adversely as compared to the appellants. The learned Single Judge also came to the conclusion that the loss of reputation, goodwill and popularity earned by the product in question would result into irreparable injury to the respondent.
9. ' We are unable to find fault with the observations made by the learned Single Judge. The learned counsel for the appellants, on the other hand, was also unable to point out any infirmity in the order passed by the learned Single Judge.
10. ' In the result, the appeal is dismissed in limine alongwith C.M.A. 1057 of 1994.
11. ' Learned counsel for the respondent does not press C.M.A. 1297 of 1994, which is dismissed as such.