Ali and Brothers & Marquis Pump Marketing and another Vs. Pedrollo NK Ltd. and others, IV ADC (2007) 934

Case No: Civil Petition for Leave to Appeal No. 1252 of 2004

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,,

Citation: IV ADC (2007) 934

Case Year: 2007

Appellant: Ali and Brothers & Marquis Pump Marketing

Respondent: Pedrollo NK Ltd.

Subject: Intellectual Property,

Delivery Date: 2006-4-16


Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
Md. Tafazzul Islam J
 
Ali and Brothers and Marquis Pump Marketing and another
……………….. .....Petitioners
Vs.
Pedrollo NK Ltd. and others
………………........Respondents
 
Judgment
April 16, 2006.
 
Code of Civil Procedure, 1908
Section 151
Order XXXIX, Rule 4
The High Court Division upon hearing the parties dismissed the appeal on the finding that the writing ‘PEDROLLA’ on the water pump imported by defendant No.6 and is being marketed by defendant No. 1-5 is similar to the writing on the water pump being imported and marketed by the plaintiff and the picture of the water pump on the carton of the water pump imported by defendant No. 6 is similar to the carton of the water pump imported by the plaintiff. …. (7)
 
Lawyers Involved:
Mahbubey Alam, Senior Advocate, instructed by Chowdhury Md. Zahangir, Advocate-on-Record - For the Petitioners
J. B. M. Hasan, Advocate, instructed by A.S.M. Khalequzzaman, Advocate-on-Record - For the Respondents
 
Civil Petition for Leave to Appeal No. 1252 of 2004.
(From the Judgment and Order dated June 23, 2004 passed by the High Court Division in First Miscellaneous Appeal No. 107 of 2004).
 
JUDGMENT
Md. Ruhul Amin J.
 
This petition for leave to appeal is against the judgment dated June 23, 2004 of a Single Bench of the High Court Division in First Miscellaneous Appeal No. 107 of 2004 dismissing the same. The appeal was filed against the order dated November 1, 2003 (Order No. 19 dated 1.11.2003) of the 2nd Court of Additional District Judge, Chittagong in Civil (Title) Suit No.2 of 2003 allowing the prayer for temporary injunction upon rejecting the application filed under Order XXXIX, Rule 4 read with section 151 of the Code of Civil Procedure. The civil (title) suit was filed under section 73 of the Trade Marks Act, 1940 for restraining the defendant petitioners and others; from selling and supplying the water pump 'PEDROLLA' imported from China.
 
2. It was the case of the plaintiff that he is the sole distributor of the Italian manufactured world famous water pump 'PEDROLLO' and upon importing from Italy marketing the same sufficiently for long time, that ‘TEDROLLO' has been regisered   as the Trade Mark in Bangladesh in the year 1992 and the said Registration will remain vaild upto year 2014, that recently the defendant Nos. 1-6 were engaged in importing water pump inscribed with the writing 'PEDROLLA' manufactured in China by imitating the cartoon, colour and model of the pump of the plaintiff, that due to the aforesaid acts of the defen­dants, ordinary customers being con­fused were purchasing the water pump of the defendants with an impression that they are purchasing the water pump being marketed by the plaintiff, that the water pumps as being marketed by the defendants are of low quality and the customers are being deceived upon pur­chasing the said water pumps and that the defendants by marketing and selling the water pumps imported by them from China are infringing the Trade Mark registered by the plaintiff and that also causing loss to the plaintiff.
 
3. After filing the suit plaintiff filed an application under Order XXXIX, Rule 1 and 2 C.P.C. seeking an order of injunc­tion against the defendant Nos. 1-9.
 
4. The prayer for injunction was opposed by defendant Nos.1-4 as well as by defendant No. 6 by filing separate sets of written objection i.e. one by the defendant Nos. 1-4 and another by the defendant No.6. It was the case of the defendants that defendant No. 6 is the importer of the water pump 'PEDROLLA' and the defendant Nos. 1-5 are the distributors of the said water pump, that water pump imported by the defendant No.6 and marketed by defendant Nos. 1-5 being cheap in price than the water pump imported by the plaintiff as such there is great demand for the water pump 'PEDROLLA' which is being imported by the defendant No. 6, that the plaintiff being jealous of the busi­ness of the defendant No.6 has filed the suit, that there is no similarity of the water pump imported by the defendant No.6 and the water pump imported and marketed by the plaintiff, that water pump imported by the defendant No.6 is made in China while the water pump imported by the plaintiff is made in Italy and as such difference of the pumps are very much visible, that Trade name of the two water pumps are different and that the Trade Mark of the pump imported by the plaintiff has not been imitated by the Chinese manufacturer of the water pump as is being imported by the defendant No. 6, that plaintiffs alle­gation of deceiving the buyers by the defendant No. 6 by marketing 'PEDROLLA' water pump made in China is not correct, that in case of mar­keting of water pump imported by defendant No.6 there is no chance of plaintiff's suffering loss or of being affected in any respect. The case of defendant Nos. 1-4 was more or less similar to the case of defendant No.6.
 
5. The trial Court on consideration of the materials held that the picture of the water pump appearing on the carton of 'PEDROLLO' imported by plaintiff and the picture of the water pump on the carton of 'PEDROLLA' as well as the carton of the water pump imported by defendant No. 6 from China is similar to the carton of the water pump imported by the plaintiff from Italy and the pic­ture of the water pump imported by defendant No.6 being similar to plain­tiffs imported water pump and that because of the closeness or the similari­ty of the Trade name 'PEDROLLO' and 'PEDROLLA' it is difficult to differenti­ate between the Trade name of the two water pumps and as such there is quite chance of purchaser's being deceived, that defendants have not denied that the water pump imported by defendant No.6 is of low quality and as such price of the water pump imported by defen­dant No.6 being low the buyers are deceived and that plaintiff is also being subjected to loss of business, that the water pump imported by the defendant No.6 and is being marketed by defen­dant Nos. 1-5 is quite similar to the water pump imported by the plaintiff and thereby the plaintiff suffering loss of business and thus plaintiff has made out a prima facie arguable case for hav­ing an order of temporary injunction and that the balance of convenience and inconvenience in the background of the fact of the case is in favour of the plain­tiff. On the aforesaid findings the trial court granted an order of injunction.
 
6. Thereupon the defendant Nos.l and 6 filed appeal, First Miscellaneous Appeal No. 107 of 2004 before the High Court Division.
 
7. The High Court Division upon hear­ing the parties dismissed the appeal on the finding that the writing 'PEDROL­LA' on the water pump imported by defendant No. 6 and is being marketed by defendant No. 1-5 is similar to the writing on the water pump being imported and marketed by the plaintiff and the picture of the water pump on the carton of the water pump imported by defendant No.6 is similar to the carton of the water pump imported by the plaintiff.
 
8. The learned Counsel for the petition­ers submits that High Court Division without arriving at a decision of its own disposed of the appeal only upon narra­tion of the facts of the case of the respective parties.
 
9. The submission of the learned Counsel apparently appears to be attrac­tive but on consideration of the materi­als on record in its entirety and particu­larly the judgment of the trial Court we are of the view the petitioners have not been prejudiced in the disposal of the appeal in the manner as to which peti­tioners' learned Counsel has  taken exception. The trial Court on detail dis­cussions of the case of the respective parties and the materials placed on record has found prima facie case in support of the prayer for temporary injunction and thereupon allowed the same. The learned Counsel of the peti­tioners could not point out that in the background of the case of the respective parties the order of the injunction passed by the trial Court and maintained by the High Court Division is not sus­tainable. On our consideration of the materials on record we are of the view that the order of injunction passed by the trial Court and maintained by the High Court Division merits no interfer­ence by this Division. It may be men­tioned that whatever observations have made by us or by the High Court Division and the trial Court while con­sidering the prayer for temporary injunction made by the plaintiff the same shall have no bearing on the merit of the case of the respective parties and the trial Court at the time of trial shall not take into consideration the finding and decision made in the judgments while disposing of the application for temporary injunction.
 
Accordingly the petition is dis­missed.
 
Ed.