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TMI Blog1994 (4) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... h the said publications pending disposal of the suit. The appellant, however, initially questioned the order on l.A.No. I which order substantially prevent the appellant from printing and publishing his newspaper Financial Times and the order passed on IANo. II is consequential to the order on I.A.No. I. However, the learned Advocate for the appellant, submitted that due to urgency, the appellant filed the appeal initially against the order on I.A.No. I. 2. The first respondent-Company is the Financial Times Ltd., a Company incorporated under the Companies Act, 1908 to 1917 having its registered office at Southwark Bridge, London. They are carrying on business, inter alia, as publishers of newspapers, magazines and periodicals. One such newspaper published from the first respondent is under the title Financial Times . The first respondent claimed relief for the infringement of his registered trade mark Financial Times and acts of passing off committed by the appellant and the second respondent by using the title Financial Times in respect of their publications. 3. According to the first respondent his newspaper Financial Times mainly deals with financial affairs. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Times Publishing House Ltd., a Company incorporated on 1-9-1983 under the Companies Act, 1956 and also registered with the Registrar of Companies, Delhi and Haryana. This Company is engaged in the business of printing, publishing and selling of newspapers and magazines. On 23-7-1990 the Registrar of Newspaper for India issued a Certificate under the Press and Registration of Books Act, 1867 (hereinafter referred to as the 'PRB Act') registering the title of the newspaper Financial Times to be published by the appellant Company. The second respondent M/s Welcast Press is a printer and the place of publication is also in Bangalore. 7. The appellant initially contended that the PRB Act is a special Act for regulation of printing presses and newspapers in conformity with Section 5 of the PRB Act and the publication of the appellant is exclusively governed by PRB Act and therefore TMM Act is not applicable. 8. In the counter affidavit sworn to by the Senior Manager and duly constituted attorney of the appellant Company, refuted almost all the averments made in I.A.No. I for grant of temporary injunction. He states that the newspaper in India shall be published in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the PRB Act. It is further contended that the circulation of this news paper has touched nearly 2 lakhs copies and therefore hundreds of employees engaged by the appellant in various offices at Bangalore, Bombay, Delhi, Patna and Jaipur were thrown out of employment and this has also affected innumeral distributors, wholesalers, retailers. The first respondent whose circulation of this newspaper Financial Times is limited to 231 copies per day and that news paper being recognised by an exclusive class of people there would not be any deception and there was no scope for any person to be deceived in between these two papers. 10. As against grant of temporary injunction the contention of the appellant is that it is legitimately publishing Financial Times as a weekly news paper after getting necessary declaration from the Registrar of Newspaper in India and this title Financial Times being registered under the PRB Act no other person can publish any newspaper in India without such certificate being obtained from the Registrar of Newspapers. No prejudice or hardship will be caused to the first respondent if the injunction was refused in view of the differences in number of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t subject. Due to some paucity of funds, the publication was discontinued for some time and it was revived by obtaining a fresh registration to make this newspaper as weekly. It is not in dispute that circulation was increased rapidly and the method adopted for circulation was to enclose as a supplement to Economic Times and the price of news paper is Re. 1/-. 13. As against this, the circulation of the Financial Times published by the first respondent in London has a total circulation of 231 copies in India which are being sent by post from London and there are two distributors engaged tor the whole of India to distribute this newspaper. The price fixed for a single copy of the newspaper of the first respondent is ₹ 50/-. Therefore, on account of the distinctiveness of these two newspapers it is quite natural that there is no possibility of any potential reader to be deceived with regard to the identity of these two newspapers. Therefore, literally it can be said at this juncture that the deception alloyed against the appellant is not conclusive due to the fact that the appellant Company was incorporated much earlier to get the registration and it is circulating the new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited, Printers and Publishers of Modern Financial Times, Bombay; a Journalist by name Ravinder Singh, V,N. Narayanan, Editor-in-Chief of Tribune Publications and Iqbal Krishan Sharma. The High Court of Delhi on a question of change in Government Policy in 1955 held that it is an executive function and with regard to the prohibiting the registration of trade marks, the Bench was unable to appreciate the arguments and held all the Petitions are speculative in nature and product of misapprehension in the minds of the petitioners on the ground that it cannot be presumed that the foreign newspapers and journal would contravene the law of this Country or indulge in activities prejudicial to the integrity of the Country and maintenance of public order. To arrive at this conclusion, the learned Judges have examined relevant provisions of PRB Act and TMM Act. At para 10 of the Judgment, it is observed that the Court has not been shown an instance that there is conflict between these two Acts and the PRB Act being a special enanctment prevails when it comes to the registration of newspapers. It is further observed that as and when conflict arises between the two Acts, the Court can al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide the question on which both the parties are independently depending to show that their rights cannot be infringed by taking recourse to any one of these Acts, but it should be decided with an harmonious construction. 20. The PRB Act 1867 is a special Act. The preamble shows that it is an Act for the regulation of printing-presses and newspapers, for the preservation of copies of books and newspapers printed in India, and for the registration of such books and newspapers. The object of the TMM Act, 1958 is to provide for registration and better protection of trade marks and for the prevention of the use of fraudulent marks on merchandise. 21. In BURRAKUR COAL CO. v. UNION OF INDIA, on the question of interpretation of statutes with reference to preamble, it is pointed out that while it is permissible to look at the preamble for understanding the import of the various clauses contained in the Bill, full effect should be given to the express provisions of the Bill even though they appear to go beyond the terms of the preamble. Where the language of an Act is clear, the preamble must be disregarded. Where the object or meaning of an enactment is not clear, the preamble may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd official seal of the Magistrate before whom the said declaration shall have been made. Under Section 7, the office copy of the declaration considered to be a prima facie evidence. Section 15 deals with penalty for printing and publishing newspaper without conforming to Rules. It prohibits to edit, print or publish any newspaper without conforming to the Rules and on conviction a fine not exceeding ₹ 2,000/- or imprisonment for a term not exceeding six months or both is provided. Penalty is also provided under Sections 15-A and 16. Section 19-A deals with the appointment of Press Registrar and under Section 19-B the Registrar shall maintain a register of newspapers which shall contain the particulars regarding title, language, periodicity, name of the editor, place of printing, the average number of pages, the number of days of publication, average number of copies printed, retail selling price per copy, names and addresses of the owners of the newspaper and such other particular which the authorities may prescribe. The proviso to Sub-section (8) of Section 5 shows that no person who does not originally reside in India shall be permitted to make a declaration presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and that date shall, subject to the provisions of Section 131, be deemed to be the date of registration. A duty is cast on the Registrar of Trade Marks to cause a search or see whether the application meets the requirements of the various statutory provisions. 25, The conclusion that would emerge under the Press Act is that 'Printing' and Publishing' are two distinctive features. Both for Printing and Publishing under a particular title a prior approval of the Registrar of the Newspaper is required as also the filing of a declaration. The word 'Printing' include cyclostyling and printing by lithography. 'Publishing' includes making known to public, circulation of a newspaper, Under Section 15 every time a newspaper is printed or published in violadon of the Act an offence under the Section is committed, under the PRB Act, By further analysing the scheme of the PRB Act a condition precedent for publishing a newspaper in India are that a person should be a citizen of India and there shall be a declaration regarding publication to be made before a Magistrate who will verify from the Registrar of Newspapers for India the availability of the title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an title blocking tactics since the same cannot be approved or registered under the Press Act. This is so, as the registration of a title by the foreign Company under the Press Act is specifically prohibited and also due to the fact that the rectification application is pending, the trial Court would not have granted an order of temporary injunction. 28. Here, we are dealing with two Acts and each Act is providing a right to the holder in accordance with the law contained therein and therefore, it requires harmonious construction between these two Acts. The Press Act not only provides for printing and publishing of newspapers in India, it also safeguards the title of a newspaper contained in the declaration if such title is not used by any newspapers registered earlier. Therefore, prima facie, when the appellant applied for registration of the title one cannot attribute mala fides in their attempt to deceive or to practice on act of deception to push through their paper Financial Times to make a reader to understand that it is the same as Financial Times belongs to the first respondent. There is variation in pages, news, number of articles and price. The circulation is only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y also. 30. In MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATION v. PARITOSH OHUPESH-KUMAR SHETH , the harmonious construction are summarised and stated that where under a specific Section or Rule, a particular subject has received special treatment, such special provision will exclude the applicability of any general provisions which might otherwise cover the said topic. 31. In POWER CONTROL APPLIANCES AND ORS. v. SUMEET MACHINES PVT. LTD. , the Supreme Court laid down the principle as to under what circumstances a temporary injunction cannot be granted in trade mark infringement action. The Supreme Court held thus:- Now, we come to the principles in relation to the grant of interim injunction. The case in K.E. Mohammed Aboobacker v Nanikram Maherchand and another 1957(II) Madras Law Journal 573 makes a reference to the case law and holds at page 574-75 as under: The principles which should govern the Court in granting or withholding a temporary injunction in trade mark Infringment actions are well settled : See recent decision Henry Hemmings, Ltd. v. George Hemmings, Ltd. (195(sic) 68 R.P.C, 47. As a temporary injunction is merely ot a provisional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he infringement of the mark. Improper and unexplained delay is fatal to an application for interlocutory injunction The interim injunction will not be granted if the plaintiff has delayed interfering until the defendant has built up a large trade in which he has notoriously used the mark. North British Rubber Company Ltd. v. Gormully and Jafffery Manufacturing Company (1894) 12 R.P.C. 17, Army and Navy Co-operative Society Ltd. v. Army Navy and Civil Service Co operation Society of South Africa Ltd. (1902) 19 R.P.C. 574, Hayward Bros, Ltd. v. Pekall (1909) 26 R.P.C. 89, Yost Typewriter Company Ltd. v. Typewriter Exchange Company (1902) 19 R.P.C. 422, Royal Warrang Holders' Association v. Slade Co. Ltd. (1908) 25 R.P.C. 245. A reference is also made in this Judgment to the Decision in RAMPAL SINGH v. RIAS AHMAD ANSARI (1990) Supp. SCC 726 @ 731, rendered by the Hon'ble Mr. Justice M.N. Venkatachaliah, J., as he then was, which is also important to note at this juncture. It is state , thus: Usually, the prayer tor grant of an imeriocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion since all readers are literate and no basic differences between the two newspapers. In addition to this, the Constitution of India guarantees freedom of expression which cannot be gagged at the behest of a person competitor. The first respondent is to establish that he is entitled to make use of the trade mark when PRB Act restricts publication of any newspaper in India by a nonresident. This large number of circulation as at present gave the employment to innumerable persons both in the process of printing and publishing and also in despatching and circulation of this paper. The hardship that will be caused to the appellant is much much greater than the hardship that would be caused to the first respondent. The balance of convenience is also in favour of the appellant as there is no material to constitute deception on the part of the appellant. 34. The learned Advocate for the appellant has also made available the materials that the appellant is publishing the articles from the Financial Times , United Kingdom through Bennett Coleman and Co. Ltd., who have an agreement dated 5-10-1990 and also made available the materials having paid the money for publication of these art ..... X X X X Extracts X X X X X X X X Extracts X X X X
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