Order 39 Rules 1 & 2
If we go by the family settlement/arrangement, there is a primafacie, case in favour of the appellants who are plaintiffs in two civil suits, as, after 31.3.96, the respondents are not entitled to use the trade mark "Kangaro". If we go only by the Retirement Deeds, excluding the family settlement/arrangement from consideration, the respondents who are plaintiffs in one suit have a prima facie case to exclusive use of the trademark "Kangaro". Keeping in view the fact that (i) trade mark "Kangaro" was being used more or less as a family trademark till 31.3.1995; (ii) both the groups are using this trademark since prior to 7.1.1997, when status quo order was passed; (iii) No serious effort was made by the respondents for vacation of status quo order dated 7.1.1997, even after dismissal of SLP of the appellants in the proceedings arising out of CO. No. 4/97; (iv) both the groups have substantial turnover from use of the trademark "Kangaro", though turnover of the respondents is stated to be much brighter than that of the appellants, (v) In some countries the appellants are using this trade mark while in some other countries it is being used by the respondents; (vi) the court can take a final view on the nature, admissibility and applicability of the documents termed as family settlement/arrangement by the appellants and proposal/counter proposal, by the respondents, only after recording evidence, to be adduced during trial, we direct as under:
(1) During pendency of these suits, the parties shall maintain the status quo, as it existed on 7.1.1997, as regards use of the trademark "Kangaro", but, in order to ensure that there is no confusion as regards the manufacturer of the product they shall also prominently display the name of the manufacturer on the box in which the product reaches the ultimate customer.
(2) Both the groups shall maintain and file, in court, quarterly un-audited accounts of the turnover, gross profit and not profit from manufacture and sale of the products sold by them under the trademark "Kangaro", so that the group which ultimately succeeds can recover suitable damages from the other group. The accounts should be filed within 90 days of the close of each quarter. They shall also file annual audited accounts, containing the same information, by 30th June each year. The Appeals stand disposed of. The observations made in this order shall not affect or influence the decision of the suits on merit.