POWER CONTROL APPLIANCES AND ORS. versus SUMEET MACHINES PVT. LTD.

Citation: [1994] 1 S.C.R. 708 · Decided: 08-02-1994 · Supreme Court of India · Bench: M.N. VENKATACHALIAH, S. MOHAN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
POWER CONTROL APPLIANCES AND ORS. 
v. 
SUMEET MACHINES PVT. LTD. 
FEBRUARY 8, 1994 
' 
[M.N. VENKATACHALIAH, CJ AND S. MOHAN, J.J 
The Copy Right Act, 1957: Sections 17, 19, 30, 34 and 54-Copy right-
infringement of-Interim injunction-family business-One off amily mem-
bers who was also a Director in the company, earlier started his own 
C manufacture of same commodity with same design and trade mark as 
registered by miginal company-The Company immediately filed suits for in-
fringement of their copy right, violation of their registered trade marks and 
design registration-Interim injunction prayed-Held, pending suit, there will 
be an interim injunction inf avour of plaintiffs as regards infringement of trade 
D mark, copy right and design. 
· 
E 
F 
Trade and Merchandise Marks Act, 1958: Ss. 12(3), 30(1)(b}-Trade 
Mark-copy right-Infringement of-Plea of honest and concurrent user for 
securing concurrent registration is not a valid defence for infringement of copy 
right. 
Acquiescence-Meaning of-If aquiescence in infringement amounts to 
consent, it will be a complete defence--Acquiescence must be such as to lead 
to inference of a licence sufficient to create a new right in defenilant. 
The Designs Act, 1911: Section 47-Registered design-Copy right 
on-Infringement-Interim injunction-Grant of-Principles explained. 
The appellants filed three suits in the High Court, alleging infringe-
ment of their copy l"ight, violation of their registered trade iqarks and 
claiming the design registration in the 'Whipper Blade" of the power 
G operated mixies. They also filed applications for interim injunctions. Their 
case was that they started manufacturing power operated kitchen mixies 
for domestic use since 1963 and were marketing the same since 1964 under 
the brand name of 'Sumeet', which was their registered trade mark. The 
respondent-Company, incorporated in 1984, started manufacturing 
domestic mixies exactly similar to appellants' mixer with identical 
H specifications except for power rating and atlh:ed in each of the appliances 
708 
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POWER CONTROL APPLIANCES v. SUMEET MACHINES 
709 
the registered trade mark 'Sumeet', belonging to the apellants in the same A 
artistic manner in which it was registered by the appellants, and thus 
committed infringement of the exclusive copy right of the appellants in the 
artistic material,_trade literature displayed on the cardboard box, operat-
ing instructions, receipe book and the guarantee card issued by them. 
The case of the defendant-respondents was that defendant No. 2 was 
the eldest son of the proprietrix of the first plaintiff. Production of kitchen 
appliances and mixer machines under th~ trade name of 'Sumeet' was their 
family business. The copy right trade mark and the copy right design were 
that of defendant No. l conceived by it. Defendant No. 2 was the Director 
of one of the companies owned by the family but because of inter se disputes 
he left the said company. The proprietrix of first plaintiff-company, and 
her husband were snare holders of defendant-company which was incor-
porated with the knowledge and approval of the plaintiffs for manufactur-
ing and marketing kitchen appliances under the trade name of 'Sumeet' 
B 
c 
and was registered on issuance of no objection from them. Therefore, the D 
defendant-company was an honest and concurrent user. 
The Single Judge of the High Court held that though the copy right 
with respect to operative instructions and receipe book. guarantee card 
and the outer carton of the Sumeet Kitchen Mixies vested in the design 
registration No. 148246 in relation to 'Whipper Blade' also belonged to the E 
first pla~ntiff and the trade mark in the name of 'Sumeet' with the par-
ticular artistic design was registered in the name of second plaintiff, but 
in view of acquiescence by the plaintiffs in the honest and concurrent user 
of the first defendant, injunction could not be granted. The intra-court 
appeals filed by the plaintiffs were dismissed. The plaintiffs filed the p 
appeals by special leave. 
It was contended on behalf of the appellants that the High Court 
having held that there was an infringement of the trade mark, the copy 
right and the design, erred in dismissing the applications for injunction 
on the ground of honest and concurrent user and the plea of acquiescence; G 
that there was no question of honest and concurrent user or acquiescence 
as the defendants never manufactured but were only marke

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