of 2009 vs.
Tube Investments of India Ltd., rep by its Vice President-Legal, & Company Secretary Mr.S.Suresh 'Dare House' 234, NSC Bose Road, Chennai 600 001. Respondent in A.No.1391/2009 / Applicant in O.A.Nos.31 and 32 of 2009 Appearance as in O.A.Nos.31 and 32 of 2009:
The plaintiff carries on an established business as manufacturers and marketers of various goods including bicycles and components thereof. One of the plaintiffs divisions M/s.T.I. Cycles has been engaged in manufacturing and marketing bicycles under the leading brand names BSA and Hercules. The plaintiff has been using the trade mark BSA for cycles and its related goods for the past five decades. The plaintiff is the proprietor of the trade mark BSA in class 12. The trade marks BSA and BSA with device were assigned by BSA Cycles Limited, England. BSA Cycles Limited assigned the registration of trade mark Piled Arms Device, BSA (word), Piled Arms Device with letters BSA in respect of cycles, motorcycles and side cars, fore cars and trailing cars and Piled Arms Device with letters BSA in respect of Pedal bicycles, tricycles, propelled wholly by the rider. The deed of assignment was duly recorded by the Registrar of Trade Marks. The plaintiff has become the subsequent proprietor of the aforesaid trade marks. M/s.Derby International Corporation, the successor in business of BSA Cycles Limited and other group companies filed a suit in C.S.No.739 of 1993 on the file of this court as against the plaintiff. The said suit ended in compromise decree on 26th April 1995 whereby the plaintiff has been declared as the absolute owner of the trade mark BSA and BSA with device. The plaintiff has made extensive sales of BSA Cycles for the last several decades. It has also incurred substantial loss towards advertising and sales promotion of their BSA brand. By virtue of long and continuous and extensive use, coupled with statutory rights, the trade mark BSA has become distinctive and the same is immediately identified by the trade and public with the products manufactured and marketed by the plaintiff. In India, the trade mark BSA is exclusively associated with the plaintiff alone and no one else. The plaintiff entered into motorised vehicle/motorcycle segment in or about September 2008 and launched electric scooters/motorcycles under the trade mark BSA through one of its division BSA Motors. Neither the defendant nor its predecessor in interest has been manufacturing motorised vehicles over the last thirty years. The defendant does not have trade mark rights in India. Its trade mark also has not been used by any meaningful manufacture. Therefore, trafficking any such trade mark is clearly impermissible and unacceptable in India. The defendant has no statutory right or common law in respect of motorcycles or any other goods falling in class 12 in the territory of India. The defendant does not have any trans-border reputation not having used the trade mark BSA atleast for the last thirty years all over the world. There is an intimate trade connection between bicycles and motorcycles as these goods fall under the same class and are of similar description. There is bound to be a confusion in the minds of the customers and traders as to the origin and source of the defendant which would ultimately lead to deception. Therefore, the plaintiff is entitled to interim injunction as prayed for. The defendant, in their communications dated 14.11.2008 and 22.12.2008, threatened to invade the statutory and common law rights vested in the plaintiff. The suit itself is filed for the apprehended and threatened acts of infringement and passing off by the defendant. The communication sent by the defendant clearly constitute a threatened and apprehended action in passing off. Further, by virtue of
section 134(2) of the Trade Marks Act, 1999, the plaintiff is statutorily entitled to institute the suit before this court in whose jurisdiction the plaintiff actually carries on business. Therefore, the plaintiff prays for dismissal of the application filed by the defendant seeking rejection of plaint and for allowing the applications for interim injunctions.
4. The counter case, in brief, of the defendant is as follows:-
The defendant had not made out any infringement as alleged. The defendant has not sold any goods under the alleged trade mark claimed by the plaintiff. The alleged memo of compromise in C.S.No.739 of 1993 on the file of this court is not valid and binding on the defendant as it was not a party to it. As no trade mark was used or no goods were sold, there could be no damage to the reputation and goodwill of the plaintiff over its alleged reputed trade mark. The winged 'B' BSA logo was adopted for all motorcycles sold by BSA and has remained so since then. In May 1957, The Birmingham Small Arms Company Limited, the world's largest motorcycle manufactures sold its interests in bicycle manufacturing to Raleigh Industries Limited. The said sale included BSA Cycles Limited also. BSA Cycles Limited did not have the right to part with the trade mark relating to motorcycle. Therefore, the plaintiff cannot claim any better title than BSA Cycles Limited itself. Only partial assignment with respect to Pedal Cycles, Tricycles and parts alone were assigned by The Birmingham Small Arms Company Limited to BSA Cycles Limited on 6.7.1959. The trade mark was not assigned to BSA Cycles Limited for use in motorcycles. Therefore, BSA Cycles has no right to use the assignment of trade mark on any motor vehicle. Birmingham Small Arms Company Limited continued with the trade mark on motorcycles. In 1982, BSA Company Limited applied for its separate registration which act, the plaintiff has conveniently suppressed in the plaint. The defendant Company is the parent company of BSA Company Limited, the owner of BSA trade marks in class 12 (motorised vehicles) throughout the world. The application filed earlier by Birmingham Small Arms Company Limited in August 1983 was abandoned and subsequent applications have been delayed as the Trade Marks Registry in India has started accepting multiple registrations and co-existence arrangements. BSA Company has now submitted a new application on 27.8.2008 to register its BSA trade mark in class 12 in India for motorcycle and motorcycle parts. No attempt was made by the plaintiff in trafficking the trade mark which allegation is baseless and uncharitable. No prima facie case was made out. The balance of convenience exists only in favour of the defendant. Therefore, the defendant prayed for dismissal of the Original Applications seeking interim reliefs. The defendant is having its office outside India. No suit could be filed without leave of court even if part of cause of action had arisen within the jurisdiction of this court. The defendant has not manufactured or sold any motorcycles within the jurisdiction of this court. There could be no cause of action for filing a suit for infringement or passing off as no goods were manufactured or sold by the defendant. The place of receipt of a letter cannot constitute either infringement or passing off. Therefore, the defendant would submit that this court has no territorial jurisdiction to entertain the suit.
5. As regards the application praying to reject the plaint, the learned counsel appearing for the defendant would submit that the mere delivery of letters at a particular location will not confer any territorial jurisdiction on the court. Admittedly, the defendant has not manufactured or sold any motorcycles within the territory of India nor has the defendant carry on business within the jurisdiction of India. Therefore, the suit laid before this court invoking territorial jurisdiction on the basis of two communications received by the plaintiff from the defendant is liable to be dismissed.
6. Learned Senior Counsel appearing for the plaintiff would seriously contend that the suit itself has been laid for the threatened action emanated from the communications received by the plaintiff from the defendant. Therefore, those two communications do give rise to cause of action for laying the suit before this court. Referring to
section 134(2) of the Trade Marks Act, 1999, the learned Senior Counsel appearing for the plaintiff would submit that the plaintiff is statutorily entitled to lay a suit before a court within whose jurisdiction the plaintiff carries on business.
7. As rightly pointed out by the learned Senior Counsel appearing for the plaintiff, the suit has been instituted not on the basis of the actual manufacture of motorcycles or selling of motorcycles by the defendant within the jurisdiction of this court. The apprehended and threatened infringement and passing off based on the two communications dated 14.11.2008 and 22.12.2008 are the cause for laying the suit before this court. Unless those two communications were sent by the defendant to the plaintiff who carries on business within the jurisdiction of this court, the plaintiff would not have plunged into infringement and passing off action before this court. It is true that mere communications through letters would not confer jurisdiction to lay the suit. But, in this case, actually it is found that those two communications are found to be seminal for putting up challenge before this court.
8. Further,
section 134(2) of the Trade Marks Act, 1999, sanctions statutory jurisdiction for the plaintiff to institute a suit or proceedings before a court within whose jurisdiction the plaintiff actually and voluntarily resides or carries on business or personal works for gain. This is a special provision found in the relevant statute viz., Trade Marks Act, 1999 to confer jurisdiction on the court. The territorial jurisdiction as contemplated under the Letters Patent Act have been given a go-by under the aforesaid
section 134(2) of the Trade Marks Act, 1999. The plaintiff has established before the court that it carries on business within the territorial jurisdiction of this court. Therefore, on both the counts, the plaintiff is entitled to maintain a suit invoking territorial jurisdiction of this court.
9. Learned Senior Counsel appearing for the plaintiff would submit that the deed of assignment dated 31.8.1991 executed by BSA Cycles Limited in favour of the plaintiff would go to establish that the plaintiff became the proprietor of the trade mark Piled Arms Device with letters BSA in class 12 in respect of Cycles/motorcycles and Side Cars, Fore Cars, and Trailing Cars also. The plaintiff has asserted its right all along in respect of the said trade mark by virtue of the aforesaid deed of assignment. Referring to the compromise decree passed in the year 1995, he would submit that the court also declared, in view of the compromise entered into between the parties, that the plaintiff is the proprietor of the said trade mark. The defendant failed to maintain separate registration for assignment of BSA Cycles Limited and resultantly abandoned the mark which is evident from the fact that the defendant has applied for fresh registration in the year 1982 as proposed user. It is his further submission that the plaintiff has got absolute and unfettered right in the trade mark BSA in India on account of the (i) registered proprietorship (ii) prior user thereof and (iii) compromise decree passed by this court. He would further contend that there is an intimate trade connection between bicycles and motorcycles as these goods fall under same class and are of similar description. Long, continuous and extensive use of the trade mark for the last three decades has resulted in valuable reputation and goodwill. Confusion would arise in the mind of trade and public if the defendant is permitted to use the trade mark of the plaintiff. Therefore, he would submit that the plaintiff is entitled to the reliefs as sought for.
10. Learned counsel appearing for the defendant would contend that The Birmingham Small Arms Limited assigned only some of the goods registered in its name viz., Pedal Cycles, Pedal Tricycles and parts to BSA Cycles Limited by deed of assignment dated 24.6.1961. BSA Cycles did not have any right in respect of motorcycles as is evident from the latest circular issued by the Registrar on 22.4.2009. When BSA Cycles did not have any right to use the trade mark in respect of motorcycles, the plaintiff, who got assignment from BSA Cycles Limited, cannot claim better title than BSA Cycles Limited had. The assignment the plaintiff got relates only to the using of the mark in respect of Pedal Cycles and not motorcycles. It is his further submission that the defendant was not the party to the suit before this court which ended in compromise decree. Therefore, the said decree would not bind the plaintiff. The plaintiff is not at all a registered proprietor of the mark in question in respect of motorcycles. The plaintiff's alleged right over the trade mark cannot be permitted by this court. Therefore, he would submit that the plaintiff is not entitled to any relief as sought for.
11. A copy of the assignment entered into between BSA Cycles and the plaintiff dated 31.8.1991 was produced before this court for perusal. BSA Cycles Limited has assigned under the aforesaid deed of assignment the trade marks Piled Arms device, BSA (word) Piled Arms Device with letters BSA for the description of the goods Cycles, Motorcycles and Side Cars, Fore Cars and Trailing Cars and Piled Arms device with letters BSA for the description of the goods Pedal Cycles and Tricycles, Propelled wholly by the rider. It is seriously contended by the defendant that BSA Cycles was not assigned with any trade mark for the description of the goods motorcycles by the defendant and therefore, BSA Cycles has no authority to assign trade marks Piled Arm device with letters BSA for the description of the goods motorcycles.
12. A perusal of the history details found in the certified copies of the registered trade marks dated 19.1.2009 would categorically disclose that Birmingham Small Arms Company Limited, a British Company, are the proprietors of the trade mark for vehicles, apparatus for locomotion by land air or sea. BSA Cycles Limited, by virtue of the deed of assignment dated 24th February 1961, became the proprietor of the said trade mark in respect of Pedal Cycles, Pedal Tricycles and parts thereof in class 12. The plaintiff herein was shown as the subsequent proprietor of the said trade mark from 31st August 1981 from the date of assignment dated 31st August 1981. The aforesaid history details found in the certified copy of the registered trade mark would amply demonstrate that BSA Cycles Limited, previous proprietor of the trade mark was assigned with the right to use the mark for Pedal Cycles, Pedal Tricycles and parts thereof only and not motorcycles. It is demonstrated that BSA Cycles, having completely suppressed the deed of assignment under which it became the proprietor of the trade mark only with respect to Pedal Cycles, Pedal Tricycles and parts thereof, executed a deed of assignment in favour of the plaintiff in respect of the trade mark for the goods motorcycles also. The plaintiff also was not vigilant in verifying the proprietorship claimed by BSA Cycles Limited with respect to the trade mark for the goods motorcycles.
13. The Trade Marks Journal produced by the defendant would establish that immediately after the assignment of the trade mark with respect to Pedal Cycles, Pedal Tricycles and parts thereof in favour of BSA Cycles Limited, BSA Cycles Limited was shown as a subsequent registered proprietor with respect to the aforesaid trade mark in the Trade Marks Journal. The Birmingham Small Arms Company Limited also chose to cancel their proprietorship over the trade mark in respect of Pedal cycles, Pedal Tricycles and parts thereof after due assignment with respect thereto in favour of BSA Cycles Limited. The aforesaid documents would clinchingly show that Birmingham Small Arms Company Limited retained proprietary right over the motorcycles and parts thereof. The BSA Cycles Limited did not have any right in respect of proprietary right over the trade mark for motorcycles as evident from the certificate issued by the trade mark registry on 22.4.2009. As per the aforesaid certificate issued by the trade mark registry, BSA Cycles Limited was the proprietor of Petal Cycles and Tricycles propelled wholly by the rider and parts thereof. Therefore, BSA Cycles Limited cannot confer any better title than what it had. No document was produced to show that the plaintiff was the proprietor of the trade mark for motorcycles and parts thereof also.
14. Even as per the own showing of the plaintiff, it had been using the mark only in respect of Pedal Cycles and not motorcycles until it launched motorcycles in the month of August 2008. Immediately thereafter, there was protest letters emanated from the defendant over the use of their trade mark for motorcycles.
15. It is true that the suit laid by Derby International Corporation in C.S.No.739 of 1993 as against the plaintiff ended in a compromise decree dated 26.4.1995 from this court declaring that the plaintiff was the absolute owner of the trade mark BSA and BSA with device. There is nothing on record to show that Derby International Corporation has anything to do with the disputed trade mark for motorcycles. The plaintiff also has not established that Derby International Corporation is one of the sister concerns of the defendant. There is no acceptable material to show that Derby International Corporation was the successor in business of BSA Cycles Limited. There is also no material to demonstrate that Derby International Corporation is really the successor in business of BSA Cycles Limited. Even assuming for the sake of arguments that Derby International Corporation was the successor in business of BSA Cycles Limited, Derby International Corporation could not have become the proprietor of the disputed trade mark for motorcycles, as the BSA Cycles itself had no proprietary right over the disputed trade mark for motorcycles. Secondly, the defendant was not a party to the aforesaid suit in C.S.No.739 of 1993 filed against the plaintiff. Therefore, any compromise decree obtained declaring that the plaintiff was the absolute owner of the disputed trade mark will not bind the defendant.
16. As per
section 28 of the Trade Marks Act, 1999, the registration of a trade mark, only if the same is valid, would give to the registered proprietor of a trade mark the exclusive right to use the trade mark in relation to the goods or services in respect of which the trade mark is registered and as such, a proprietor is entitled to obtain relief in respect of infringement of the trade mark. The defendant has prima facie demonstrated before this court that the registration of the disputed trade mark for motorcycles was not valid inasmuch as the assignee itself did not have any proprietorship over the disputed trade mark.
17. This court in M/s. CIBA GEIGY LIMITED AND ANOTHER v. CROSSLANDS RESEARCH LABORATORIES LIMITED (1995 PTC 251) has held as follows:-
" 6. At the outset, we may point out that under
Section 28 of the Trade and Merchandise Marks Act, 1958, the registration of a trade mark shall give to the registered proprietor of the Trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act. And under
Section 29 of the Act, a registered mark is infringed by a person who, not being the registered proprietor of the trade mark or a registered user thereof using by way of permitted use, uses in the course of a trade mark which is identical with, or deceptively similar to, the trade mark, in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. This section gives an absolute protection to the appellants. Once a trade mark is violated, the proof of intention becomes immaterial. ....... Nevertheless, in an action on the trade mark, that is to say, in an infringement action, an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiff's mark. The action for infringement is dependent upon the validity of the registration and subject to other restrictions laid down in
sections 30,34 and
35 of the Act."
18. Firstly, in this case, it is found that the defendant has not started manufacturing motorcycles with the disputed trade mark. The defendants have demonstrated before this court that they were the original proprietors of the disputed trade mark for motorcycles. The defendants are now taking proceedings to establish their proprietorship over the disputed trade mark. Secondly, the plaintiffs have got assignment of the disputed trade mark for motorcycles from a Company which did not have any lawful domain over the disputed trade mark for motorcycles. The validity of the registration of the trade mark by the plaintiff on the strength of the assignment, the plaintiff had got from BSA Cycles Limited, has been prima facie shattered by the defendant. Further, it is found that these interim applications have been filed to stall the entry of the defendant into India to establish their unassailable proprietorship over the disputed trade mark for motorcycles. In view of the above facts and circumstances, the above authority does not apply to the facts and circumstances of this case.
19. The Supreme Court in POWER CONTROL APPLIANCES v. SUMEET MACHINES PVT LTD. ((1994) 2 SCC 448) has observed as follows:-
"It is a settled principle of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore, the first defendant-respondent has proclaimed himself as a rival of the plaintiffs and as joint owner it is impermissible in law. Even then, the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other."
20. The public will be confused if two sources for a produce are promoted to be floated. That was a case where rival claim was made by the first defendant over the proprietorship of the trade mark. But, in the instant case, the real proprietor of the disputed trade mark is taking proceedings to assert its proprietorship. The claim made by the plaintiffs that they are the proprietors of the disputed trade mark by virtue of assignment they got has been sufficiently shattered by the defendant. Therefore, the aforesaid ratio laid down by the Supreme Court will have no application to the facts and circumstances of this case.
21. The Bombay High Court in PODDAR TYRES v. BEDROCK SALES CORPORATION (AIR 1993 BOMBAY 237) has held as follows:-
"Mr.Rahimtoola then contended that Santosh Kumar Poddar has filed an application with the Registrar, in his capacity as a shareholder of the second defendants, for holding that the plaintiffs are not entitled to be the registered proprietors of the trade mark, as the assignment of the proprietary rights in the said trade mark by the second defendants to the plaintiffs is invalid. Whatever the worth of the said application, it is not possible to accept the contention that such an application can prevent the registered proprietor from asserting his rights as registered proprietor of the trade mark under S.28 of the Act as long as the trade mark continues on the register. The short answer to the contention is contained in the judgment of Justice Vimadalal of this Court in Hindustan Embroidery Mills Pvt. Ltd. v. K.Ravindra and Co., (1974) 76 Bom LR 146, wherein the learned Judge pointed out that it is not the practice of this Court to consider the validity of the registration of a trade mark on a motion for interlocutory injunction taken out by the person who has got the mark registered in his name. While a mark remains on the register (even wrongly), it is not desirable that others should imitate it. I am unable to accept the contention that the pendency of the rectification application prevents the plaintiffs from exercising the statutory rights under the Trade Marks Act or from seeking interim reliefs based thereupon."
22. That was a case where a shareholder of the second defendant challenges the assignment made by the second defendant in favour of the plaintiff and the registration of the trade mark in the name of the plaintiff by virtue of such assignment. Under such circumstances, it was observed in the aforesaid judgment that no one should be permitted to imitate when a mark was already registered in the name of a person. In the instant case, the plaintiff has failed to establish prima facie that it has got valid assignment from BSA Cycles Limited. The plaintiff cannot be permitted to assert its right over the trade mark for Motorcycles as against the real proprietor of the trade mark over the motorcycle. Further, the defendant does not dispute the assignment of the trade mark for Bicycles and Tricycles already parted with by them by way of assignment in favour of BSA Cycles Limited. When the defendant has retained its proprietary ownership over the disputed trade mark for motorcycles, it has every right to protect its ownership. The plaintiff cannot throw a challenge as against the real proprietor of the trade mark by way of defective assignment the plaintiff had got. Therefore, the aforesaid authority does not come to the rescue of the plaintiff.
23. It is true that the plaintiff has been manufacturing and marketing non-motorised cycles based on the assignment they have got from BSA Cycles Limited. But, the plaintiff cannot make a claim over the disputed trade mark for motorised cycles like Electric Scooters on the plea that after all the plaintiff has started manufacturing only some goods that too non-motorised cycles, more especially against the real proprietor for motorised cycles. The plaintiff cannot project a plea that the plaintiff being proprietor of the registered trade mark for non-motorised cycle can prevent the defendant, who has established prima facie that it is the proprietor of the disputed trade mark for motor vehicles, from producing the same.
24. It is contended by the learned Senior Counsel appearing for the plaintiff that the plaintiff has built up reputation for the mark BSA in India for the past 37 years and therefore, any motorised cycle in the very same trade mark would confuse the public as to the source of such product. The defendant has specifically retained the disputed trade mark for motorcycle. Despite that the assignee under the defendant had assigned the trade mark for motorcycles over which it did not have ownership. The plaintiff also had not earlier produced any motorcycle with the disputed trade mark. Only very recently, the plaintiff has entered into the manufacturing of the motorcycle using the very same trade mark. It is true that the plaintiff has acquired a reputation for the mark BSA in India but, the plaintiff cannot prevent the defendant, who appears to be the real proprietor of the trade mark for motorcycle from proceeding to retain its proprietorship over the trade mark. The source theory would apply to third parties but not to the real proprietor of the trade mark who purposely retained the trade mark with it.
25. This court in HEALTH AND GLOW RETAILING PRIVATE LIMITED v. DHIREN KRISHNA PAUL (2007 (35) PTC 474) has held as follows:-
"As seen from the language employed in sub-section (4) of
Section 29, it seeks to lay down that a registered mark is infringed by a person, if he uses a mark, which is identical with or similar to the registered trade mark, but on goods or services, which are not similar, provided the registered trade mark has a reputation in India and the use of the mark without due cause would take unfair advantage of or is detrimental to the distinctive character or repute of the registered trade mark. In other words, infringement would arise even by the usage of a trade mark in relation to dissimilar goods or services, if three conditions are satisfied, namely:- (i) that the mark is identical with or similar to the registered mark (Section 29(4)(a)); (ii) that the registered mark has a reputation in India; and (iii) that the use of the mark without due cause, takes unfair advantage of or is detrimental to the distinctive character or repute of the registered mark (Section 29(4)(c))."
26. The aforesaid ratio will not apply to the facts and circumstances of this case where the defendant being the proprietor of the disputed trade mark over the motorcycle asserts its ownership over the trade mark. The plaintiff who sources its proprietorship to the defendant as regards the trade mark for Bicycle cannot prevent the defendant who retained the subject trade mark for motorcycle from entering into the field on the plea that use of the trade mark for cycles by the plaintiffs and use of the very same trade mark by the defendant for motorcycle would give rise to confusion in the mind of the public.
27. As rightly pointed out by the learned counsel appearing for the defendant, an uncharitable allegation has been made against the defendant who has established prima facie that it is the proprietor of the subject trade mark for motorcycles that the defendant is now involved in trafficking in the trade mark.
28. It is submitted by the learned Senior Counsel appearing for the plaintiff that the defendant had long ago abandoned the subject trade mark for motorcycles. It is not as if the plaintiff has been using the subject trade mark for motorcycles for a long period. Only in the month of September 2008, the plaintiff has entered into motorised vehicle segment and the same has been seriously challenged by the defendant within two weeks on coming to know of the misuse of the trade mark it retained. Further, it is found that the defendant has been pursuing the proceedings for separate registration of the trade mark in class 12 for the motorcycles. Though the earlier application filed by the defendant on 27.5.1982 was withdrawn, a new application dated 27.8.2008 to register its trade marks in class 12 in India for motorcycles and motorcycle parts has already been submitted. The defendant, who has demonstrated that it retained its original trade mark BSA for motorcycles and motorcycle parts has every right to enter into India on proper registration by the trade mark registry. The said process cannot be stalled by the plaintiff on the ground that its name appears as the registered proprietor for the trade mark BSA Motorcycles also.
29. The plaintiff has failed to establish its source of proprietorship over the trade mark BSA Motorcycle whereas the defendant has demonstrated that it did retain its ownership over the trade mark BSA Motorcycles. After all, the plaintiff has just started manufacturing motorised vehicles in the trade name BSA Motorcycles. The inconvenience that would be caused to the defendant who is found to be the real proprietor of the trade mark BSA Motorcycles in the above circumstances would be irreparable compared to the inconvenience that would be caused to the plaintiff who has got apparently defective proprietorship over the trade mark BSA Motorcycles and has just started to manufacture motorised vehicles. Further, no injunctions of this sort can be granted as against the real proprietor of the trade mark.
30. For all these reasons, Application No.1391 of 2009 filed by the defendant seeking rejection of plaint and O.A.Nos.31 and 32 of 2009 filed by the plaintiff seeking interim reliefs are liable to be dismissed.
31. In the result, Application No.1391 of 2009 and O.A.Nos.31 and 32 of 2009 stand dismissed. There is no order as to costs.
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