RUKESH KANJIBHAI PATEL Vs. PARESH NATVARLAL THACKER

JUDGEMENT

(1.) Heard learned advocates. Challenge in this Appeal from Order is made by the original defendant to the order passed by the 2nd Additional District Judge, Gandhidham at Kachchh dated 23.01.2015 below Exhibit-5, in Regular Civil Suit No. 1 of 2015. The operative part of the impugned order reads as under.

(2.) Learned advocate for the appellant - original defendant has submitted that, the appellant has made an application to the Registrar of the Trade Marks, being TM Application No. 2844301 on 17.11.2014 for the goods Class-30. It is submitted that as per the provisions of the Trade Marks Act, more particularly Section 20 and 21, further procedure is to be followed, such as advertisement of application in the Trade Mark Journal, filing opposition to the registration by any aggrieved party, etc. It is submitted that instead of resorting to the said remedy prescribed under the Act, the present respondent issued legal notice to the appellant on 16.12.2014. It is submitted that the said notice was responded by reply dated 29.12.2014, which is claimed to have been received by the respondent on 06.01.2015. The suit was filed by the present respondent on 03.01.2015. It is in this suit, Exhibit-5 application came to be filed, in which the written statement was filed on 19.01.2015 and the impugned order came to be passed on 23.01.2015, which is quoted above. Learned advocate for the appellant has further submitted that, filing of the suit itself was not maintainable in view of Section 27 of the Act and therefore, the injunction application ought not to have been entertained. From the impugned order itself, it is pointed out that, this contention is specifically referred also by the Trial Court and still, without dealing with that contention, the impugned order is passed. It is submitted that the respondent - original plaintiff is not a bona fide litigant and no restrain order should have been passed against the defendant. It is further submitted that who has infringed whose right, is a matter which needs to be examined by leading evidence and therefore at this stage the grant of injunction was unwarranted. It is submitted that the impugned order be interfered with.

(3.) On the other hand, Mr. Upadhyay, learned advocate for the respondent - original plaintiff has submitted that, his client also has made an application for registration of Trade Mark to the Registrar, being TM Application No. 2703568 dated 21.03.2014. It is submitted that the further procedure in that regard is underway. It is submitted that under these circumstances, the Trial Court is justified in granting injunction as prayed for. It is submitted that there is mis-representation on the part of the appellant-original defendant that reply was sent on 29.12.2014. It is submitted that the said reply was sent on 05.01.2015, which is received by the plaintiff on 06.01.2015 and therefore the institution of suit on 03.01.2015 can not be termed to have been by suppressing any material fact by the plaintiff. Learned advocate for respondent-original plaintiff has taken this Court through the paper book and also affidavit-in-reply dated 05.02.2015, the copy of which is given to the learned advocate for the appellant, during the course of hearing. It is submitted that the present case is of - passing off, and the Trial Court has rightly granted the injunction and this Court may not interfere. Reliance is placed on the following decisions in support of his submissions. It is submitted that this Appeal from Order be dismissed.