DAMODARBHAI KUMANBHAI KANSAGARA Vs. WORLD EXPRESS ELEVATOR

JUDGEMENT

(1.) This group of appeals are filed under Order 43 Rule 1(r) of the Civil Procedure Code, 1908 (in short "the Code") read with Sec. 5 and 3 of the Commercial Court Act, 2015 challenging order passed below Exh.5 in respective commercial trademark suits, wherein, the learned Commercial Court in exercise of powers under Order 39 Rule 1 and 2 of the Code, dismissed injunction applications.

(2.) Since this group of appeals involves and contains common and identical facts, with the consent of learned counsel appearing for the respective parties, the same is being disposed of by this common order.

(3.) It is the case of the plaintiff that the plaintiff is a sole proprietor of 'Express' Electro Elevators having his office at Rajkot and carrying on business of Elevators, moving walkways, moving platforms, Escalators, Engines, Step Chains, Balustrades, step door operators, operating panels, installing repairing, maintaining and modernizing elevators etc. It is further case of the plaintiff that he is registered proprietor of trademark 'Express' Electro Elevators, wherein word 'Express' forms the essential, prominent and distinctive part of the entire trademark. The plaintiff further claimed that said trademark is registered vide trademark registration No.3088775 in class 7 for goods and 3088776 in class 37 for services. It is further case of the plaintiff that he is using said trademark since 1999, which is noted by the Trademark Registry while registering the trademark. The plaintiff has earned goodwill and reputation for his product under the trademark "'Express'", which is forming entire descriptive matter. However, the defendants have deliberately adopted the trading style as well as trademark containing the word 'Express' so as to encash goodwill and reputation of the plaintiff as well as to pass on their goods under the impression that it is goods of the plaintiff. Therefore, upon such main contention, the plaintiff filed the suit for infringement of the trademark and passing off action.