LAKSHMI VENKATESHWARA RICE MILL Vs. MAHARUDRA RICE INDUSTRIES

JUDGEMENT

(1.) THIS appeal arises out of order dated 13.2.2014 passed by II Addl. District and Sessions Judge, Davanagere, on I.A. No. 1 filed by the defendants under Order XXXIX R.1 and 2 read with Section 151 of the Code of Civil Procedure ('CPC' for short) in O.S. No. 1/2013, being aggrieved by the order of temporary injunction granted against them.

(2.) FOR the sake of convenience, parties shall be referred to in terms of their status before the trial Court.

(3.) IN response to the said application, defendants filed their statement of objections inter alia contending that defendant No. 1 is not aware of the plaintiff being engaged in the business or trade in rice since the year 1984 and marketing its products with the pictorial representation of a baby elephant along with the word "APPU". Denying the averments made in the plaint, defendants averred that the brand name and device used by the defendants are quite distinct from what has been used by the plaintiffs and that the two trade marks are different and there is no infringement of plaintiffs' trade mark by the defendants; that the word "MALEBENNUR" is not used on the bags of the defendants; that the defendants had applied for registration of trade mark as "SLVT" - Sri Lakshmi Venkateshwara Rice Mill, Hospet and below that "APPU" i.e. an emblem of baby elephant, whereas plaintiffs trade mark is "SMRI" - Sri Maharudra Rice Industries" Malebennur and below that APPU brand. According to the defendants, the features of the trade marks are distinct. That the word "APPU" is used by so many firms with different features and for so many products and that the plaintiffs cannot claim any exclusive right in the word "APPU". Contending that the plaintiffs have no prima facie case or balance of convenience, it was averred that there is neither infringement of the plaintiffs' trade mark nor any deceptive similarity. The defendants therefore sought dismissal of the application.