2026 Supreme(Bom) 240

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R. I. CHAGLA, ADVAIT M. SETHNA, JJ.
Dr. Bawaskar Technology (Agro) Pvt. Ltd. – Appellant 
Versus 
Anannya Agro Products And Anr. – Respondents 
COMMERCIAL APPEAL FROM ORDER NO.28 OF 2025, COMMERCIAL SUIT NO.9 OF 2025 WITH INTERIM APPLICATION NO.12806 OF 2025
Decided On : 16-03-2026

Appellate court interferes with trial court's refusal of interim injunction in passing off where findings on mark as generic lack pleadings support, plaintiff shows prior use/secondary meaning, and deceptively similar trade dress persists despite minor unilateral changes.

Headnote:(A) Trade Marks Act, 1999 - Section 9 - Absolute grounds for refusal - Distinction between generic, descriptive, suggestive marks - Abercrombie spectrum classification - Marks devoid of distinctive character or designating product characteristics not registrable unless secondary meaning acquired - CPC - Order XXXIX Rules 1, 2 - Passing off - Prior continuous extensive use establishes prima facie distinctiveness - Trade dress replication causes likelihood of confusion - Trial court discretion amenable to appellate interference if perverse or contrary to pleadings/material - Unilateral trade dress changes post-suit do not dispel confusion. (Paras 72, 82-85, 87, 98-99, 104)

(B) Passing Off - Descriptive marks - Burden on defendant to prove common trade use - Plaintiff shows goodwill via sales data, invoices, promotions - Agriculturists as consumers of imperfect recollection prone to source association - Essential features of packaging identical despite de minimis alterations - License agreement implies mark treated as distinctive. (Paras 76-79, 86, 88, 93)

(C) Interim Injunction - Appellate review - No mini-trial but prima facie evaluation - Trifecta of prima facie case, balance of convenience, irreparable injury - Refusal where wrong test applied or findings dehors pleadings. (Paras 81, 102, 104)

Facts of the case:
Plaintiff claims prior use of mark for agricultural germination product since 1981 with distinctive trade dress, supported by sales turnover 2010-2024, invoices from 1997, promotions, e-commerce listings. Pending registration applications. Defendants adopted identical mark and trade dress in 2024 under license from third-party registrant, also planned similar mark for another product. Trial court granted ex-parte injunction, later vacated upon defendants' modified trade dress submission. Plaintiff appeals impugned order refusing confirmation.

Findings of Court:
Impugned order quashed for erroneous generic classification sans pleadings, overlooking prior use edge, inconsistent findings. Mark suggestive, acquired distinctiveness; trade dress deceptively similar causing confusion. Injunction against passing off using identical/deceptively similar mark/trade dress pending suit.

Issues: Whether mark generic/descriptive barring protection; plaintiff establishes prima facie passing off via prior use, goodwill, confusion likelihood; validity of assessing modified trade dress; appellate interference with trial discretion.

Ratio Decidendi: Appellate court sets aside perverse findings deviating from pleadings/law, where plaintiff demonstrates prior extensive use, secondary meaning, trade dress replication sowing confusion unremedied by unilateral minimal changes; agriculturists likely deceived by essential similarities.

Result: Appeal allowed.

Table of Content
1. appellate scrutiny of trial court's injunction refusal. (Para 1 , 2)
2. prior use of 'germinator' and 'harmony' since 1981. (Para 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20)
3. extensive prior use acquires secondary meaning. (Para 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41)
4. 'germinator' descriptive, no secondary meaning proven. (Para 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71)
5. generic finding erroneous, lacks pleadings support. (Para 72 , 73 , 74 , 75 , 76 , 77 , 78)
6. burden on defendant to prove common trade use. (Para 79 , 80 , 81)
7. 'germinator' suggestive, inherently distinctive protectable. (Para 82 , 83 , 84 , 85)
8. de minimis trade dress changes insufficient against confusion. (Para 86 , 87 , 88 , 89 , 90)
9. license implies distinctiveness; inconsistent stands estopped. (Para 91 , 92 , 93 , 94 , 95 , 96 , 97)
10. interfere with perverse refusal of passing-off injunction. (Para 98 , 99 , 100 , 101 , 102 , 103 , 104)
11. appeal allowed; injunction against passing off granted. (Para 105 , 106)

JUDGMENT :

ADVAIT M. SETHNA, J.

Prolouge:-

1. This is a classic case where we are called upon to adjudicate the impugned order dated 4 October 2025, passed below Exh. 5 by the Commercial Court at Pune in Commercial Suit No. 9 of 2025 (“Impugned Order” for short), in the context of the fundamental principles governing trademark jurisprudence. As an Appellate Court, we are required to examine the cardinal principles and classifications applicable to marks, viz. generic, descriptive, suggestive, and arbitrary/fanciful. Such legal principles, as applicable to infringement and passing off, form the subject matter of our analysis and scrutiny in light of the findings of the Trial Court in the Impugned Order.

2. The Trial Court had vide the Impugned Order rejected the application of the Appellant (Original Plaintiff) seeking temporary injunction under Order 39 Rules 1 and 2 of the CIVIL PROCEDURE CODE (“CPC” for short) against the Respondents (Original Defendants). The sequitur of this being that the Appellant/Plaintiff seeks continuation/confirmation of the earlier order of the said Trial Court dated 2 April 2025 granting ad-interim injunction in favour of the Appellant/Plaintiff and against the Respondents/Defendants.

Factual Matrix:-

3. The predecessors of the Appellant/Plaintiff conceptualized, developed and commercially introduced formulation sold under the Trade Mark “GERMINATOR”. This was coined in the year 1981 and used continuously since then. According to the Appellant/Plaintiff, it became the most recognized brand amongst agriculturist across India.

4. The Appellant/Plaintiff Company was incorporated on 24 April 2009 as would be evident from the Certificate of Incorporation, bearing such date.

5. The Appellant/Plaintiff launched another product under the name and style of “HARMONY” which is said to be one of the flagship registered brands and Trade Mark of the Appellant/Plaintiff. This was in use since the year 2010. The artistic label and packaging of “HARMONY” constitutes original artistic work, according to the Appellant/Plaintiff being protected under the Copyright Act, 1957.

6. The Appellant/Plaintiff had initially applied for registration of the mark “GERMINATOR” under No. 3505073 on 4 March 2017 with the Trade Mark Registry.

7. Such application of the Appellant/Plaintiff for the Trade Mark “GERMINATOR” was deemed as abandoned by Registry of Trade Marks, Mumbai, vide order dated 13 October 2023 for non-receipt of hearing notice for filing a counter statement.

8. The Appellant/Plaintiff filed a review against such abandonment order on 2 May 2024 before the Trade Mark Registry, which is pending adjudication.

9. The Appellant/Plaintiff filed a fresh application for registration under No. 6750663 on 11 December 2024 for

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