GOLDGEM OVERSEAS Vs. FLAWLESS DIAMOND (INDIA) LTD.

JUDGEMENT

(1.) The Plaintiff has sued the Defendant upon for infringement of his registered trademark and for the act of passing off the said mark. Both the parties are in the business inter alia of diamond jewellery. Both claim to use the trademark "AUM" in respect of their product s, which are jewellery items. The goods of both the parties which essentially fall under the aforesaid mark are sold in retail outlets. It is the case of the Plaintiff that there is identity of business, goods as well as customers called "The Triple Identity ".

(2.) How and when both the parties came to use and apply the said mark are matters of admitted facts and documented records which need to be noted at the outset:-

(3.) Upon these admitted facts Mr. Dhond on behalf of the Plaintiff contends that since the Plaintiff's use of his trademark pre- dates that of the Defendant by six years and his registration pre- dates the use by the Defendant by three years, the Defendant's use is impermissible in law. The Plaintiff also contends that since the Defendant had knowledge of the Plaintiff's registered trademark prior to his application for registration of the same trademark, his registration cannot be granted and the use by the Defendant of the mark even prior to the registration being granted is dishonest and malafide, it having been made despite knowledge of the Plaintiff's mark.