MICOLUBE INDIA LIMITED Vs. MAGGON AUTO CENTRE

JUDGEMENT

(1.) THE Appellant has filed the present appeal being FAO (OS) 146/2008 for setting aside the order dated 7th February, 2008 passed by the learned Single judge in IA no. 11702/2007 and 12433/2007 in CS (OS) No. 2015/2007. The appellant has further prayed that its application being IA No. 11702/2007 under order 39 Rules 1 and 2 CPC read with Section 151 CPC be allowed and the respondents be restrained from using the impugned Trade Mark/label (i. e. MICO)or any other trade mark/label identical with or deceptively similar to the appellant"s mark in relation to lubricants/petroleum products, engine oil, and gear oil, etc. till the disposal of the suit.

(2.) THE learned Single Judge has dismissed the Appellants" application under Order 39 Rules 1 and 2 CPC and vacated the ex parte ad interim order of injunction dated 9th October, 2007. The Single Judge in his order dated 7th february 2007 has concluded that the Appellant/plaintiff has concealed and suppressed material facts and further that the ingredients of passing off as per settled principles are prima facie not established in the present case.

(3.) MR. Bansal, learned counsel for the Appellant, contended that the single Judge failed to appreciate that the Appellant was a prior user of the trade Mark "mico" (hereinafter refers as "the said mark" ). He stated that the appellant has been using the mark since 1960 and in 1985, the said mark had been registered in its favour for lubricants. He further contended that the defendant who had been using the Trade Mark MICO for its Spark Plugs earlier had only in February 2007 commenced using the said mark for lubricants. He stated that there is evidence to show extensive advertisements by the Appellant for lubricants and it was impermissible for the Respondents to venture into marketing of lubricants with the mark which was being used by the Appellant. He further submitted that the learned Single Judge has erroneously reached the findings of suppression and on that basis, rejected the relief which the appellant was very much entitled to.