MANGALORE ZENITH BEEDIES Vs. ZEENATH BEEDIES

JUDGEMENT

(1.) PLAINTIFF in O.S. No. 2/2012 on the file of the Additional District Judge, Shimoga, aggrieved by the order dated 02.03.2013 rejecting I.As. 1 and 5 of 2012 and allowing I.A. No. 4/2012 to vacate the ex parte order of injunction dated 21.11.2012, in so far as it relates to I.A. No. 1/2012, has presented this appeal. Briefly stated facts are: The appellant -plaintiff carries on business in the manufacture of Beedies since the year 2010 under the name and style of 'Mangalore Zenith Beedies' and that the name is not a recognized trade mark by the competent authority while the application is pending consideration. The respondent arraigned as defendant carries on manufacture of beedies since 1975 in the name and style of 'Mangalore Zeenath Beedies'. Appellant alleging that the defendant is carrying on business by use of name and mark of trade, which is deceptively similar, instituted O.S. No. 2/2012 for permanent injunction along with I.A. No. 1/2012 under Order 39 Rules 1 and 2 of the CPC, for temporary injunction restraining the defendant from interfering with the plaintiffs peaceful business. That application was opposed by filing LA No. 4/2012 to vacate the ex parte order of temporary injunction. In addition, defendant filed LA No. 5/2012 under Order 39 Rules 1 and 2 of CPC, by way of counter injunction against the plaintiff from from interfering with the defendant's business.

(2.) THE Court below, having regard to the material averments in the applications, more appropriately, that the plaintiff applied for trade mark on 12.08.2010, which was not granted till the date of the suit and that the Central Excise licence was issued while the defendant claimed that he is the owner of a registered trade mark in the name and style of 'Mangalore Zeenath Beedies', obtained licence from Central Excise and has been carrying on business from the year 1975 while the plaintiff was in fact, its agent for some time and subsequently, started the beedi business by deceptively using the trade mark of the defendant, observed that the artistic features and artistic idea used by the defendant for representing the trade mark was similar to that of the plaintiff and that the defendant had rightly pointed out seven similarities in the plaintiffs trade mark, accepted as prima facie evidence of deceptive similarity between the marks used by the plaintiffs beedi and the trade mark of the defendant, which is registered. Regard being had to the fact that if the plaintiff is allowed to use the said trade mark and continue to carry on his business, the defendant, registered owner of trade mark would suffer irreparable loss and injury and not the plaintiff and since no prima facie case was made out by the plaintiff and if the temporary injunction is not granted, would not suffer any injury nor inconvenience, the Lower Court dismissed I.A. No. I. Having heard the learned Counsel for the appellant, perused the pleadings and examined the order impugned, in my considered opinion, the lower appellate Court was fully justified in drawing conclusions based on reasons, findings, which are neither shown to be illegal nor to have occasioned grave injustice calling for interference. Appeal devoid of merit is dismissed.