E.S.M. ERULAPPAN PARTNER OF THE FIRM E.S.M. TEXTILES Vs. E.S.M. GURUSWAMY TRADING AS M/S. SHANTI TEXTILES AND REGISTRAR OF TRADE MARKS

JUDGEMENT

(1.) THIS is an application for rectification of the trade mark No. 578607 in class 25 of the trade mark PONNIS. The applicant and the respondent were carrying on business in textile and garments since the year 1965. Their father Mr. E.S. Marimuthu Nadar in the year 1965 started business in the name and style of M/s. E.S. Marimuthu Nadar & Sons. In 1980, the sons of Mr. E.S. Marimuthu Nadar joined together with him as partners. The firm was using the trade mark PONNIS for selling variety of textile garments including nighties, bra, panties, petticoats and blouses.

(2.) APART from this firm, there were two independent business entities namely M/s. Shanthi Textiles - sole proprietor Mr. E.S.M. Guruswamy, the 1st respondent herein and M/s. E.S.M. Tex - partner Mr. E.S.M. Erulappan, the applicant herein.

(3.) THE proprietorship concern M/s. Shanthi Textiles and M/s. E.S.M. Tex were started for the purpose of extension of business and compliance with the various revenue laws. M/s. E.S.M. Tex was using the mark PONNIS with the device of paddy crop at least since the year 1995. The respondent was aware of the applicant's use. The respondent had also given the consent in writing to the applicant for using the trade mark Ponni. After having consent in writing, the respondent filed a civil suit before the District Court Virudhunagar and obtained an ex parte injunction order dated 29/11/2008 which subsequently was vacated. The applicants became aware of the impugned registration from the pleadings in the civil suit.