WAMAN MANJIRAM HEBARE Vs. RAMESH MANJIRAM HEBARE

JUDGEMENT

(1.) This appeal challenges the order passed on 25.9.2008 by the learned District Judge-II, Jalna below application Exhibit 6 in Regular Civil Suit No. 2 of 1980. By the impugned order, the defendants were restrained from using trade mark "Hebare" of the respondent.

(2.) Briefly stated, the respondent is the original plaintiff who filed application Exhibit 6 before the trial Court for injunction regarding infringement and passing off. The respondent is the proprietor of "M/s. Hebare and Sons" and his firm is in the business of production of sewing machines under the trade name and trade mark "Hebare". He has been doing business for the last 20 years and has earned goodwill and reputation in the market. The sewing machines are being sold in Districts such as Jalna, Beed, Latur and other part of the Marathwada region.Respondent-plaintiff is the real brother of the appellant-defendant. It is the case of the respondent-plaintiff that appellant was not associated with the business run by "M/s. Hebare and Sons" in general and sewing machine in particular. However, in spite of this, present appellant started selling sewing machines prominently displaying the word "Hebare" inlarge font on the sewing machines and other words "Amit" and "Ajinkya" are used in small letters by giving them insignificant place on the machines those are being sold by defendant. It is further contended that the defendant is carrying out such activities with an intention to gain profit by unlawfully using the trade mark of the plaintiff.

(3.) According to plaintiff, he has applied for registration of trade mark "Hebare" in the year 2002 and during pendency of his application for registration of the said trade mark, he came to know that Dayaldas and Company, Delhi had also applied for registration of the said trade mark "Hebare" vide application No. 996146 dated 13.3.2001. That trade mark was advertised in journal Mega 4 and subsequently registered on 8.6.2005. After coming to know about this development present respondent approached the proprietor of Dayaldas and Company and informed the said proprietor that he (plaintiff) had been using the said trade mark "Hebare" for last 20 years. After negotiations, the plaintiff has purchased the said trade mark bearing registration No. 384045 from Dayaldas and Company and accordingly, deed of assignment came to be executed between the plaintiff and partners of said Dayaldas and Sons under which the trade mark No. 996946 bearing registration certificate No. 384045 is purchased by the plaintiff for Rs. 5000/= and he thus became owner thereof from the date of deed of assignment. In the circumstances, plaintiff sought temporary injunction restraining present appellant-defendant from using the trade mark "Hebare".