KRISHNA CORPORATION Vs. PATEL AMISHABEN SANJAYBHAI

JUDGEMENT

(1.) Order dated 07.05.2019 rendered by learned Chamber Judge, City Civil & Sessions Court, Court No.26, Ahmedabad below Exh. 6-7 in Civil Suit No. 400 of 2019 declining the relief in respect of the passing off action is sought to be assailed in this appeal from order under Order 43 of the Code of Civil Procedure, 1908 ( for short 'C.P.C').

(2.) On consideration of the rival submissions and the record of the case, it clearly appears that the appellant is the prior user of the disputed mark as evidenced by invoice dated 07.07.2017; learned counsel for the opponent is unable to assail the said invoice and despite opportunity given by this court to the opponent evidencing the prior user, no such invoice is pointed out. It is also not in dispute that the appellant had produced with the court below numerous invoices evidencing the user of the disputed mark since 07.07.2017.

(3.) By now it is settled legal position that even if the two products are different, the action of passing off goods be maintainable on the basis of deceptive similarities in the label, colour combination, design, etc. Therefore notwithstanding the registration of the mark having been sought by the opponent in a different class i.e 29 than the class sought by appellant i.e 31 the case for passing off is made out.