Passing off is a tort action that prevents misrepresentation of goods or services as those of another trader. Prima facie case of passing off requires elements such as misrepresentation, prospective customers, injury to business and goodwill, and actual damage.

JUDGMENT

Jayant Nath, J. - I.A. Nos. 12625/2020 (u/O 39 R 1 & 2 CPC) & 1394/2021 (u/O 39 R 4 CPC)

1. I.A. 12625/2020 is filed by the plaintiff to restrain defendant No.1, its proprietors, directors, etc. from manufacturing, marketing, offering for sale, selling, advertising, etc. the impugned goods and services bearing the impugned marks AMPA and or any other mark which is deceptively similar to the Plaintiff s trademark AMPA and logo so as to result in an act of passing off its goods and services as those of the plaintiff.

2. On 23.12.2020, this court had passed an interim order stating that defendant No.1, its proprietors, servants, directors, agents etc. are restrained from using the mark AMPA and the logo or any other mark which is deceptively similar to the plaintiff s mark AMPA with logo amounting to passing off its goods as that of the plaintiff. Defendant No.2 was restrained from using the domain name www.ampacycles.com till the next date of hearing.

3. I.A. 1394/2021 is filed by defendant No.1 seeking vacation of the said order dated 23.12.2020.

4. As per the accompanying suit, the plaintiff-Sh.Jagmohan Ratra is the sole proprietor of the firm concern-M/s Four Diamonds engaged in manufacturing and selling of bicycles, tricycles, prams, baby rider bicycles, etc. under several brands, one of which is AMPA. The plaintiff s proprietorship concern M/s. Four Diamonds was initially established as a partnership firm in 1983 having two partners, namely, the plaintiff-Sh.Jagmohan Ratra and one Sh.Hari Dutt Sharma. The plaintiff s trademark AMPA and the logo was coined by Sh.Jagmohan Ratra, the plaintiff and was adopted by the partnership firm in the year 1991 in respect of bicycles and tricycles. On 30.03.1992, Ampa Bikes Private Limited was incorporated having the plaintiff and the then partnership firm-M/s Four Diamonds as shareholders in the said company. A trademark application in Class 12 for the word mark AMPA was filed on 21.06.1995 by the company with the user claimed from 01.04.1992 in the name of Ampa Bikes. However, the said trademark application was abandoned in 2002.

5. The partnership firm M/s Four Diamonds was dissolved vide a Deed of Dissolution dated 01.08.2003. The other partner, namely, Sh. Hari Dutt Sharma exited the partnership and the plaintiff continued the business under the trading name and style M/s Four Diamonds as his sole proprietorship concern. As a part of the settlement dues, the plaintiff transferred his shares in the company Ampa Bikes Private Limited to Sh. Hari Dutt Sharma. It is the case of the plaintiff that it was specifically agreed that the plaintiff would continue to use the trademark AMPA and all the assets and goodwill would be transferred to the plaintiff. It is pleaded that as per the Deed of Dissolution, AMPA trademark could be used by two entities, namely, the plaintiff could use the trademark for cycles upto 14" and the Company-Ampa Bikes Private Limited was allowed to use the said trademark for all the cycle models of more than 14 inches. In 2013, the Company-Ampa Bikes Private Limited was struck off from the Register of Companies and hence, ceased to exist. However, the plaintiff continued to use the trademark AMPA in respect of the cycles.

6. It is the case of the plaintiff that he has continued to use the trademark AMPA uninterruptedly and continuously since its adoption in 1991 in respect of his products i.e. initially through the partnership firm-M/s Four Diamonds and thereafter, through the Plaintiff s sole proprietorship concern-M/s Four Diamonds.

7. It is also the case of the plaintiff that in March 2019, he filed a trademark application seeking registration of a unique logo consisting of the plaintiff s trademark AMPA in black colour and letter A in red colour written in a unique and distinctive manner. The application is pending registration. The plaintiff has stated the user from 2011. It is stated that in any case, for the last nine years, the plaintiff is the sole entity w