MUJEEB MODERN RICE MILLS Vs. P. DORAISAMY GOUNDER

JUDGEMENT

(1.) LEAVE granted. The appeals have been preferred from the order1 of the Division Bench of the Madras High Court in proceedings initiated under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as "the Act").

(2.) BOTH the appellant and the respondent claimed that they have been carrying on the business of selling rice under a mark depicting "Maharaja" (borrowed from Air India) as well as the word "Maharaja". As far as the appellant is concerned, it is claimed that it started such business in the year 1980 and that it was an extensive business. An application for registration of the trade mark was made in July 1992 and provisional registration was granted on 4/8/1992. It is not in dispute that the respondent applied for registration of its trade mark on 15/9/1992. The respondent also claimed to have been carrying on the business of selling rice under the identical trade mark since 1980. According to the respondent, the turnover of such business was considerable.

(3.) THIS judgment was impugned in appeal by the respondent. The court stated that there was no documentary evidence and that the issue would have to be determined on the basis of the affidavits filed. At the outset, we may note that it would be inappropriate to decide the issue on the basis of the affidavits alone in a case which relates to the utilisation of a trade mark. It has to be, at least prima facie, established in the application for interim relief that the applicant has been utilising the trade mark as claimed by it. However, on the basis of the affidavits, the Division Bench said: