KHANNAN POLYMERS Vs. BAIRATHI SHOES COMPANY PRIVATE LIMITED

JUDGEMENT

(1.) CHALLENGE in this appeal is to the order dated 4th September, 2009, whereby the learned Additional District Judge, No. 5, Jaipur City, Jaipur restrained the Appellant -Defendant himself from using the trade mark 'BERATI' for the purpose of manufacturing, selling and exporting the shoes", foot -wears etc. or through his any agent or servant till the suit is finally adjudicated.

(2.) THE nub, of the Appellant's story is that the Respondent -Plaintiff filed a suit for permanent injunction along with the application for temporary injunction under Section 134 of Trade Mark Act, 1999 (hereinafter referred to as 'Act of 1999'). It is averred that the Plaintiff -Respondent is a registered Company and indulges in the manufacturing and sale of foot -wears in the name and style of trade mark 'BAIRATHI'. This trade mark was got registered under the provisions of 'Act of 1999'. The Plaintiff came to know from Registrar of Trade Mark that the Defendant applied to get a trade mark registered in the name of 'BERATI' for manufacturing and sale of foot -wears. The Plaintiffs business has been established since 1980 and the Defendant was taking the advantage of his goodwill, so inclined to carry out business in the name of trade mark 'BERATI', which was deceptively and phonetically similar.

(3.) LEARNED Counsel for the Appellant canvassed that the trade mark 'BERATI' of Appellant -Defendant is registered. Learned trial court by way of adjudicating the temporary injunction application has, in fact, decreed the suit by restraining him from manufacturing foot -wears, shoes, chappals etc. and selling them to customers. Learned trial court also focused on the phonetic and deceptive similarities with regard to trade mark but; did not take into consideration the dis -similarities in both the trade marks emerging on record. Hence, the impugned order cannot be said to be good order in the eye of law, which deserves to be set aside.