The main legal point established in the judgment is the lack of merit in the appellant's contentions regarding the family association with the trade mark Jain Shikanji, the maintainability of the suit, and the validity of registration for the trade mark Jain Shikanji.

JUDGMENT :

SAURABH BANERJEE, J.

1. The three elements essential for adjudication of trade mark disputes, like the present one, involve “Name” (Jain) or “Work” (Shikanji) and “Identity” (Jain Shikanji).

2. Present dispute is inter-se “Jain” family members, who amongst other products, deal in Shikanji under the name and style of Jain Shikanji. By virtue of the present appeal, appellant belonging to one “Jain” family member is calling upon this Court to adjudicate upon the legality of the impugned order whereby it has been restrained from using the trade mark Jain Shikanji of respondent, the other “Jain” family member. The details thereof are elucidated herein-under.

3. Appellant (original defendant) by this appeal seeks to impugn order dated 05.11.2022 passed by the learned Trial Court whereby an application under Order XXXIX rules 1 and 2 of The Code of Civil Procedure, 1908 [henceforth referred as “CPC”] of the respondent (original plaintiff) has been allowed in his favour and the appellant along with other persons claiming through it have been restrained from selling, offering for sale any goods, advertising or promoting any product under the trade mark Jain Shikanji/Jain Shikanji Restaurant or any other trade mark similar or deceptively similar to the trade mark of the respondent namely Jain Shikanji till the disposal of the said suit.

4. Records reveal that the respondent, an individual, claiming himself to be proprietor of the registered trade mark Jain Shikanji and running several outlets in different parts of the country under the name and style of Jain Shikanji and Jain Shikanji Restaurant for selling shikanji drink, shikanji powder and other food products under the said registered mark, instituted a suit for permanent and mandatory injunction for infringement of trade marks, passing off, dilution of trade marks, unfair competition, damages and delivery up etc. with respect to his trade mark/logo/device Jain Shikanji and other Jain Shikanji formative/ containing marks in addition to other ancillary reliefs [henceforth referred as “Suit”] against the appellant, a company incorporated under the provisions of the Companies Act, 2013 and engaged in the business of selling and manufacturing similar products as that of the respondent under the trade mark Jain Shikanji before the learned Trial Court.

5. As per respondent, the dispute involved herein has a history which started from the father of respondent, Late Sh. Parmatma Sharan Jain [henceforth referred as “Late Sh. Jain”] who began by opening a Shikanji Shop under the name and style of Jain Shikanji at Vikas Nagar Colony, Kadrabad, Delhi-Meerut Road, Modinagar, District Ghaziabad, Uttar Pradesh more than five decades ago. With time, the said trade mark Jain Shikanji became distinctive of the said late Sh. Jain and his sons, including the respondent and gained immense popularity and goodwill.

6. Respondent claimed that after the demise of said late Sh. Jain in 1991, he along with his four other surviving brothers systematically devised a manner to carry forward the said business under the name and style of Jain Shikanji. Resultantly, over a period of time, the said trade mark Jain Shikanji acquired a secondary meaning. The respondent also opened several outlets under the name and style of Jain Shikanji from time to time after obtaining requisite food licenses, which are being renewed from time to time and also after obtaining registrations for the trade mark Jain Shikanji from time to time with appropriate statutory tax authority, which are also being paid from time to time.

7. Respondent claimed to have filed several applications for registration of the mark Jain Shikanji in Class 29, 32, 35, 42 amongst other classes claiming user since 14.06.1996 from 26.05.2008 onwards and as few such registrations are valid and subsisting in its name, it has the exclusive right to use the same in respect of goods or services for which they are registered.

8. Respondent claimed to have learnt in