SOMASHEKAR P. PATIL Vs. D.V.G. PATIL

JUDGEMENT

(1.) Appellant filed Suit in O.S. No.6665 of 2017 against the respondent for committing infringement and passing off of the trademark and trading name "PATIL and PATIL PARIMALA WORKS" by using identical and deceptively similar trading name i.e. "PATIL FRAGRANCES". The appellant also filed applications IAs.I and II under Order XXXIX Rules 1 and 2 for interim injunction to restrain respondent from using the name "Patil Fragrances" or any other identical or deceptively similar trading name or trademark during the pendency of the Suit. Initially, the applications were allowed and temporary injunction was granted by its order dated 09th October 2017 and upon respondent filing IA.7 under Order XXXVI Rule 4 of the Code of Civil Procedure seeking vacating the ex party interim order granted on 09th October 2017, the learned Judge, by its order dated 31st March 2018 vacated the interim order. Hence, the appellant-plaintiff has filed this appeal with a prayer to set aside the order dated 31st March 2018 passed by the XVIII Additional City Civil Judge, Bengaluru (CCH 10) and it is sought to allow IAs.I and II filed by the Plaintiffappellant and to dismiss IA.7 filed by the defendantrespondent.

(2.) Shri Udaya Holla, the learned Senior Counsel appearing for the learned counsel for the appellant submits that the Court below by appreciating the case of the appellant granted an ex parte injunction on 09th October 2017. It was the case of the appellant that the respondent is using the similar name viz. "PATIL FRAGRANCES" which is identical to that of the appellant's registered trade name "PATIL and PATIL PARIMALA WORKS." The word-mark "PATIL" was got registered by the appellant since 1978 and certificate to this effect has been issued as per Annexure-Q dated 10th March 2016; and another certificate issued which is evenly dated wherein the word mark "PATIL PARIMALA WORKS" is used since 01st January 1978. It is submitted that the respondentdefendant, who has got his name registered as "PATIL FRAGRANCE" in the year 2017 and passing off of the goods that are similar to that of the appellant, infringes his right. Accordingly the same is to be injuncted. The learned Senior Counsel further submitted that rival trademarks are phonetically, visually, conceptually and aurally are identical and deceptively similar. It is contended that the appellant has a prima facie case to show that it is a clear adaptation of registered trademark and trading name "PATIL and PATIL PARIMALA WORKS". It is further submitted that as the respondent-defendant had not made out his case and since he has used duplicate trademark, though rightly, the court initially granted ex parte injunction, but however, committed an error in vacating the same on IA.VII filed by the respondent. Hence the learned counsel seeks to vacate the interim order. In support of his submissions, the learned Senior Counsel relied upon the judgments of this Court in the case of M/S. COTHAS COFFEE CO. v. M/S. COTHA ASSOCIATES AND OTHERS, (2017) ILR(Kar) 4927; in the case of ADIGA SWEETS v. VASUDEV ADIGA'S FAST FOOD reported in (Kar.HC); in the case of ADIGA S ABHIRUCHI AND OTHERS V. ADIGA S FAST FOOT,2007 35 KAR(PTC) 548; in the case of DR. REDDY'S LABORATORIES LIMITED v. REDDY PHARMACEUTICALS LTD; and in the case of K.G. KHOSLA COMPRESSORS LTD. V. KHOSLA EXTRAKTING LTD. AND OTHERS, (1986) 6 PTC 211.

(3.) On the other hand, it is the case of the respondent that the appellant-plaintiff had suppressed the facts that the defendant and plaintiff the respondent and appellant herein belong to the same family and share common surname. The defendant is the ex-employee and brother of the plaintiff. With an intention to obtain ex parte temporary injunction, he has not disclosed the relationship. It is submitted that whoever approaches the court should disclose the material facts and non-disclosing is nothing but suppression of facts. It is further submitted that the respondent-defendant's name is Doddanna Veeranagouda Patil, and is known by 'DVG Patil.' All concerned and relevant identity, statutory licences and permissions stand in the name of DVG Patil. Prior to 2015 defendant was working as General Manager with "Patil Parimala Works" i.e. appellant's concern. Due to some reasons, defendant-respondent discontinued association with plaintiff-appellant as an employee. Both the appellant and respondent are brothers and one late Malleshgouda Police Patil is their great grandfather. The family members of both plaintiff and defendant use surname 'PATIL' predominantly. The manufacture of the respondent's production is named as "PATIL FRAGRANCE" of which 'Patil' is defendant's surname. Hence, conducting any business or trade using the surname is permitted and not restrained under the Act. Most of the people of the family of plaintiff and respondent, in any field whoever are doing the business, invariably have their trade name as "Patil" and like that the defendant also has the similar surname for his products and accordingly his interest is covered under Section 35 of the Trademarks Act, 1999.