ORDER :

R.I. Chagla, J.

Heard, Mr. Kamod, Ld. Advocate appearing for the Petitioner.

2. By this Petition, the Petitioner is challenging the registration of the impugned trade mark bearing no. 4076679 in class 32 granted by the Respondent No. 2, in favour of the Respondent No. 1, in respect of mineral and aerated waters and packaged drinking water.

3. It is stated that the present Petition has been duly served by hand upon the Respondent No. 1 on 22nd December, 2022 as well as upon Respondent No. 2, by email on 15th February, 2023 and by registered AD post on 16th February, 2023. Apart from the above, the Respondents were also given notice/informed that the matter would be listed on 3rd March, 2023 and 17th April, 2023. It is specifically pointed out that Respondent No. 1 has refused to accept service of the notice. Accordingly, it is stated that Respondent No. 1's refusal to accept service amounts to good service. Affidavit of Service of one Mr. Dilip Palwankar dated 12th April, 2023 to that effect has been filed.

4. Considering, the Respondents have failed to appear, in spite of service, Mr. Hiren Kamod, Ld. Advocate for the Petitioner is pressing for interim relief in terms of prayer clause (d) i.e. for stay of the operation and effect of the registration of the trade mark bearing no. 4076679 in class 32 granted in favour of Respondent No. 1.

5. It is stated that the Petitioner has been using the trade mark Sunrich/SUNRICH labels at Exhibits A, B and C to the Petition inter-alia in respect of mineral and aerated waters and packaged drinking water since the year 2004-2005. It is stated that the said SUNRICH labels are original work of art under the meaning provided in the Copyright Act, 1957 and the Petitioner is the owner of the copyright subsisting in the said original artistic works subsisting in the said SUNRICH labels and has the exclusive right to use and reproduce the said SUNRICH labels wholly or substantially in any material form, including their colour combination, get up, layout and arrangement of features.

6. It is stated that the Petitioner has also secured registrations and is also the proprietor of the SUNRICH trade marks bearing nos. 2735006, 2606455 and 1336220 in class 32, respectively, details whereof are set out in paragraph 5 of the Petition and copies of the certified copies of the entries made in the Register of Trade Marks for use in legal proceedings in respect thereof are at Exhibit D, E and F to the Petition.

7. It is stated that Petitioner has made large sales of the said goods bearing the SUNRICH trade marks/labels and has also taken efforts to popularize the same. Mr. Kamod draws my attention to Exhibit G to the Petition which is a copy of the statement containing the Petitioner's annual sales and sales promotional expenses in respect of the said goods/SUNRICH products from the year 2004-2005 to 2013-2014 and 2014-2015 to 2019-2020 duly certified by the Petitioner's Chartered Accountant and Exhibit H to the Petition which are Petitioner's specimen invoices showing sale of the Petitioner's said goods.

8. It is stated that in view of the above, the Petitioner's said goods bearing the said SUNRICH trade marks/labels have acquired valuable goodwill and reputation and the said SUNRICH trade marks/labels collectively as well as individually have been exclusively associated with the Petitioner and none else, including by all cross sections of people, urban and rural; literate, s