VIJAY SOLVEX LTD. Vs. SAURABH AGROTECH PVT. LTD.

JUDGEMENT

(1.) The present appeal by the defendant in a pending commercial suit, impugns an ad-interim temporary injunction order restraining it from using the trademark ASHOKA in relation to edible oil, oil cakes, ghee, and related goods. The plaintiff (hereafter called Saurabh) had sued it (i.e. the second defendant/appellant, hereafter called "Vijay Solvex ") for infringement and sought permanent injunction as well as damages.

(2.) Saurabh was incorporated in Aug., 1994. It manufactures, sells and distributes -through its dealers, edible oil, oil cakes, vegetable ghee and allied goods. In 1975, one M/s Rohtash Industries Limited, Times House, New Delhi- 110002 adopted and started using the trademark ASHOKA in relation to goods in question viz. edible oil, oil cakes, vegetable ghee, and allied goods as well as business of manufacturing and marketing edible oils. ASHOKA was registered (Registration No.354173) as of 05.10.1979 in Class 29. Rohtash Industries sold its entire business of edible oil as a going concern including the trademark ASHOKA to Raghuvar (the third defendant) by agreement dated 03.07.1984. The application on Form TM-24 for change of entry (ownership) was filed on 23.03.1988 in the Trade Mark Registry by the said Raghuvar for entering itself as assignee, and was allowed on 05.05.1988. A consequential entry was made in the register of trademarks. It was alleged that due to communication gap between earlier proprietor of the mark and their attorney, the above registration of the trademark vide No.354173 in Class 29 had lapsed as renewal application was not filed in time in the Trademark Registry by its attorney. But the fact remains that trademark rights were assigned-a fact not disputed by the assignor or assignee. Later on 07.04.2008 trademark proprietorship rights were acquired by the plaintiff by and through assignment from M/s.Raghuvar (India) Ltd. After having acquired rights, Saurabh applied for change of ownership in the trademark registry in respect of the mark, ASHOKA, in Form TM-16. Vijay Solvex after about two years filed the objection to the application for registering the assignment. However Saurabh 's application was allowed. The mark was duly registered. After passing the order dated 13.05.2010 by the Trade Marks office favouring Saurabh, it became proprietor of the trademark, (No. 1324290 in Class-29) in respect of the said goods applied for. Claiming use since the year 1975, the plaintiff approached this court, expressing apprehension that the defendants were likely to start or had started infringing the registered trademark ASHOKA by using a similar label along with the device of a lion and a wheel within the territorial jurisdiction of this Court.

(3.) Saurabh 's suit alleged that Vijay Solvex was trying to infringe the plaintiff 's trademark and pass off its goods as those belonging to the plaintiff as it was claimed by it (Vijay Solvex) in the market that it was the permitted user of Raghuvar. Radhey Shyam Agencies (hereafter "Radhey Shyam ", the first Defendant and agent of Vijay Solvex) was selling the products of Vijay Solvex as those of Raghuvar in Delhi. It was alleged that the active directors of the second and third defendants (Vijay Solvex and Raghuvar) were common. As assignee of the mark Raghuvar was now trying to use the trademark of the plaintiff through Vijay Solvex in an illegal manner. Saurabh alleged that the trademark ASHOKA was continuously used by it either directly or through its predecessor-in-title or licensee, extensively, uninterruptedly, commercially and continuously since 1975. It has tremendous reputation in the market. Saurabh claimed that its mark ASHOKA has gained all round popularity and is a wellknown mark in India. That trademark ASHOKA is exclusively associated with Saurabh 's goods. The suit alleges that all essential features of the trademark, i.e. its style, get up, presentation, etc. have been substantially if not wholly copied by the defendants who have reproduced the artwork of the label used by the plaintiff. This according to Saurabh resulted in confusion and deception. Saurabh sells its goods in many parts of India. Their goods are also available in the local markets of Delhi. The plaint further alleged that the defendants were trying to enter the markets of New Delhi with the same trademark and in respect of the same goods.