TRIPADA HEALTHCARE PRIVATE LIMITED Vs. TRIPADA BIO CARE

JUDGEMENT

(1.) Heard learned advocate Mr. B.D. Shukla for the appellant and learned advocate Mr. D.T. Dave for the respondent. Both the advocates have agreed to finally decide the appeal since interim relief is prayed for by separate civil application and relief in civil application as well as main appeal is practically same i.e. prayer for injunction in favour of the appellant.

(2.) The appellant is original plaintiff before the District Court, Ahmedabad (Rural) in Civil Suit No. 3 of 2013 wherein an application for interim stay was rejected by judgment and order dated 8.8.2013 by the 4th (Adhoc) Additional District Judge, Ahmedabad (Rural). The appellant has prayed to restrain the defendant and his associates from using the trade-name "TRIPADA" and/or other mark which is identical with and/or deceptively similar to plaintiffs registered trade-mark "TRIPADA" in any manner and at any place during the pendency of suit and thereby to restrain the defendant from committing the act of infringement and act of passing off under the impugned trademark of the plaintiff.

(3.) Mr. Shukla, learned advocate for the appellant has pointed out that initially Tripada Healthcare Pvt. Ltd. was used by one Navnit P. Modi in the year 1998, but the same was registered with Controller General of Patent Design and Trademarks in the year 2006 with Trademark No. 1515263 for pharmaceuticals and medicinal preparations including herbal, bacteriological, contraceptive, disinfectants, therapeutic and biological drugs, which are included in Class 05. While registering such trademark in the name of Tripada Healthcare Pvt. Ltd. i.e. present plaintiff on 16.10.2008, the competent authority has categorically noted that trademark typed is word "TRIPADA", which is in use since 01.07.1998 and registration is valid upto 20.12.2016. For such registration, a certificate No. 759258 was issued on 16.10.2008. Mr. Shukla has also pointed out that during pendency of such registration in the name of Tripada Healthcare, the partners of such firm being family members have entered into an agreement of assignment of trademark from Navnit Punjiram Modi, being partner of Tripada Healthcare, a partnership firm to Tripada Healthcare Pvt. Ltd. through its Director Jalpesh Hasmukhbhai Modi. By such agreement of assignment of trademark, executed on 4.10.2012, trademark TRIPADA with trademark No. 1515263 which is valid upto 20.12.2016 and one another trademark TRIFLUXY with trademark No. 1067123 valid upto 14.12.2021 were assigned to Tripada Health Care Pvt. Ltd. i.e. present plaintiff-appellant. It is not disputed that previously such trademark was owned by Tripada Healthcare, a partnership firm of family members. Learned advocate Mr. Shukla has also pointed out that newly formed private limited company had already applied for necessary change in the trademark register because of such assignment before the competent authority and in turn the competent authority has by order dated 19.8.2013 entered the name of the appellant in the register as registered properly of the said trademark TRIPADA under the same registration No. 1515623, which is in existence since 2008. Certificate of such change has been issued on 21.8.2013 wherein it is categorically disclosed that pursuant to a request on form TM-23 dated 30.10.2012 and order thereon dated 19.8.2013 with affidavit of Devendra Kodarlal Modi, the name of registered user has been changed from Tripada Healthcare to Tripada Healthcare Pvt. Ltd. It is also stated in such certificate that the word TRIPADA' is being used by assignor since 1998, it is registered in the year 2006 and it is valid upto 2016. Several other factual details and aspects have been brought to the notice of the Court and argued by Mr. Shukla. Mr. Shukla, learned advocate for the appellant has also pointed out that initially the partner of the respondent -defendant, namely, Kamlesh K. Joshi was serving with Tripada Healthcare Pvt. Ltd. and, therefore, though he was aware that the word TRIPADA has been registered by the appellant, he has after leaving the appellant started the business with the same trademark in partnership with some other persons. However, at present, above material is sufficient to decide the present Appeal from Order.