NAVYUG COMMERCIAL Vs. MAHESHWARI TEA COMPANY PVT. LTD.

JUDGEMENT

(1.) The present appeal, filed under Order XLIII Rule 1 (r) of CPC is directed against the order dated 18.10.2012 passed by the Additional District Judge (Fast Track) No.3, Metropolitan Jaipur, (hereinafter referred to as "the trial court"), in Civil Misc. Application No.214/2012, whereby the trial court has allowed the application of the respondent-plaintiff under Order XXXIX Rule 1 & 2 of CPC, restraining the appellant from using the word "Mangaleshwari" for his business of Tea & Coffee and also from using the packing material similar to the registered trademark of the respondent-plaintiff.

(2.) It appears that the respondent-plaintiff has filed the suit being No.222/2011 against the appellant-defendant, alleging interalia that the respondent's-company was using the trademark "Maheshari" in specific artistic manner, label, colour scheme, layout, and design since 1961 and that word "Maheshari" alongwith the color scheme and design was also registered under the Trademark Act, (hereinafter referred to as "the said Act"). It was further alleged that the appellant-defendant was using the packing material and label with the word "Mangaleshwari", with the color scheme and design deceptively similar to the trademark registered by the respondent-plaintiff. The respondent-plaintiff had also filed the application under Order XXXIX Rule 1 & 2 seeking temporary injunction, which was resisted by the appellant-defendant by filing the reply, alleging interalia that the defendant was in the business of trading, selling and manufacturing the tea since 1991 with name of "Mangaleshwari" and that the defendant had also moved the application for getting its mark registered under the said Act. The trial court vide the impugned order dated 18.10.2012 allowed the said application of the respondent for temporary injunction as stated hereinabove.

(3.) It has been sought to be submitted by the learned counsel Mr. Prateek Kasliwal for the appellant that the trial court could not have restrained the appellant from using the word "Mangaleshwari" for the business of tea & coffee, when the respondent had not registered the word "Maheshari" and it was the whole image, which was registered under the said Act. He also submitted that the appellant is using the word "Mangaleshwari" since last more than 20 years and his business has been stopped with the injunction granted by the trial court. According to him, it would be matter of evidence which could be appreciated by the trial court after both the sides have led their evidence, as to whether the appellant should be permanently restrained from using the word "Mangaleshwari" or not, and if the temporary injunction as granted by the trial court is continued, that would tentamounting to allowing the suit at the interim stage. However, the learned counsel Mr. Rajendra Prasad for the respondent has vehemently submitted that the appellant has not placed any document before the trial court to show that the appellant was carrying on the business in tea since last 20 years as alleged. According to him, from the original labels used by the appellant as well as the respondent it was very apparent that the appellant was using the label with the word "Mangaleshwari", which was phonetically and visually deceptively similar to the image with the word "Maheshari" registered under the said Act. Relying upon the decision of the Delhi High Court in case of Keshav Kumar Aggarwal Versus NIIT Ltd., 2013 54 PTC 178 the learned counsel Mr. Prasad has submitted that when the label mark is registered, it cannot be said that the word mark contained therein is not registered.