IMPORTANT POINT
A plaintiff must use their registered trademark to claim infringement; failure to do so undermines the basis for an injunction.

JUDGMENT :

Rajesh S. Patil, J.

The present Commercial Appeal from Order is filed by the appellant (original defendant) challenging the judgment and order dated 17th February 2023, passed below Ex.5, by the District Court, Satara in Regular Civil Suit No. 1 of 2023.

2. The appellant herein is the original defendant before the Trial Court, and the respondent herein is the original plaintiff before the Trial Court. The parties are hereinafter referred as per their nomenclature in the Trial Court.

3. The plaintiff on 5th December 2022 filed a suit before the District Court, Satara against the defendant claiming recovery of an amount of Rs.10,92,799/- and also sought an order restraining permanently the defendant from manufacturing, selling and storing the product in the name of ^^'kqHky{eh fpoMk fjVdoyh**. Along with the suit, the plaintiff also preferred an interim application in the form of ‘Ex.5’ thereby seeking interim orders during pendency of the suit, against the defendant and their representatives to restrain them from manufacturing, selling and storing the product in the name of ^^'kqHky{eh fpoMk fjVdoyh**.

4. The plaintiff’s suit is based on the ground that the plaintiff has a trademark as ^^fjVdoyh**] ^^:pdj Lokfn"V [keax**, (R RITKAWALI)”. The plaintiff’s trademark was registered on 9th March 2015. It was further the case of the plaintiff that the defendant started selling the product Chiwda from the year 2012 under the name of ^^'kqHk**. However, since defendant was not able to earn sufficient income, therefore from the year 2014 – 2015 the defendant started his production in the name of ^^'kqHky{eh** which was similar to the name of plaintiff product ^^egky{eh**. However, even then as there was no good response, the defendant from the year 2016-2017 started selling his product in the name of ^^'kqHky{eh fpoMk fjVdoyh** which was similar to the name of the product of the plaintiff.

5. After, the defendant was served with the copy of plaint and ‘Ex. 5’ application, the defendant filed his reply to ‘Ex.5’. The defendant denied the contentions of the plaintiff. He submitted that his family resides at Ritkawali. He has manufacturing unit at Medha and the raw material process is carried out at Ritkawali.

6. The learned District Judge, Satara, thereafter heard the advocate of both sides, on the interim application ‘Ex.5’ and by his judgment and order dated 17th February 2023, partly allowed the ‘Ex.5’ application of the plaintiff, thereby temporarily restraining the defendant from manufacturing, selling, storing the product ^^fjVdoyh Lis'ky 'kso fpoMk** or ^^fjVdoyh Lis'ky** or ^^'kso fpoMk fjVdoyh Lis'ky**.

7. Being dis-satisfied with the judgment and order dated 17th February 2023 passed by the District Judge, Satara partly allowing Ex.5 application, the defendant has filed the present Commercial Appeal from Order, under Section 13 of the Commercial Courts Act.

8. Mr. Sandesh D. Patil, learned counsel appeared on behalf of the applicant (original defendant) made his submissions. He submitted that the case of the plaintiff was not that of ‘passing off’ but was that of ‘infringement of trademark’. He submitted that the plaintiff’s mark was that of ^^fjVdoyh** written in bold font along with three words written below it ^^:pdj Lokfn"V [keax**, with a portrait of a boy standing with the cap in his right hand, wearing a green T-shirt and the word “R” written on the said T-shirt and wearing orange trouser. He submitted that the plaintiff however was selling his product with the name ^^egky{eh** written in larger font and in a smaller font the word ^^fjVdoyh** written below the word ^^egky{eh** and a upper body picture of a boy with a cap in his hand, on the top of the word ^^egky{eh** above which the word ^^:pdj Lokfn"V [keax** is written in a circle. The printing on packet in which the plaintiff was selling his product, was different from the actual registered trademark of the plaintiff. He submitted that the defendant was selling his