The main legal point established in the judgment is that the appellant had a prima facie case against the respondent for trademark infringement, and the Trial Court's findings were contrary to the facts and law.

JUDGMENT

Saurabh Banerjee, J.

1. This appeal by appellant (original plaintiff) seeks to impugn order dated 8th January, 2023 passed by the learned Trial Court [Hereinafter referred as "impugned order"] dismissing its application under Order XXXIX rules 1 & 2 read with Section 151 [Hereinafter referred as "interim application"] of The Code of Civil Procedure, 1908 [Henceforth referred as "CPC"] against the respondent (original defendant).

2. Succinctly put, appellant after its constitution on 25th December, 2015, commenced business of trading in Fast Moving Consumer Goods like edible oil, dairy and dairy products, beverages and other allied and cognate goods under various marks. One, Kwality Limited [Hereinafter referred as "predecessor"], the predecessor of the appellant herein, also engaged in dealing in various Fast Moving Consumer Goods, particularly in different types of milk and milk products, was the owner of the trademark `SUGARLITE. for Class 29 products since 2003. The said predecessor, vide a Deed of Assignment in 2016, assigned the trademark `SUGARLITE' along with its goodwill to the appellant. Thereafter, the appellant appointed the predecessor as a permitted user/ licensee of the trademark `SUGARLITE. till 31st December, 2018 and then appointed one Goodhealth Industries Private Limited as a subsequent permitted user/ licensee. Interestingly, prior thereto, though the predecessor of appellant had filed an application for seeking registration of the same trademark `SUGARLITE. in Class 30 vide application No.2739962, however, the same was refused due to non-appearance of its nominated Advocate. As there is no conflicting mark to that of `SUGARLITE. of the appellant pending or registered in either Class 29 or Class 30, the use of an identical and/ or deceptively similar trademark by the respondent in respect of similar and/ or allied and cognate goods without its permission tantamounted to violation of both common law rights and the statutory rights under The Trade Marks Act, 1999 [Hereinafter referred as "TM Act"].

3. Thereafter, the respondent commenced negotiations with the predecessor for assignment/ license of the said trademark `SUGARLITE. in April 2018 and upon its failure applied for registration of the impugned mark `SugarLite. in Class 30 vide application No.3192344 before the Trade Mark Registry, who, vide its Examination Report objected to its registration citing the already registered trademark `SUGARLITE. of the appellant. The appellant then filed pre-publication objections against the said impugned mark `SugarLite. of respondent and also issued a Cease & Desist Notice dated 12th September, 2019 to the respondent leading to an exchange of letters until 17th March, 2020 and then finally instituted a suit for permanent injunction, restraining infringement of trademark, passing off, damages and rendition of accounts before the learned Trial Court seeking appropriate reliefs for restraining the respondent and others from using the impugned mark `SugarLite. or any other identical and/ or deceptively similar mark as that of the registered trademark `SUGARLITE. of the appellant.

4. The respondent in its written statement contended to be dealing in health and wellness products under various trademarks and that it had honestly and bona fidely coined the word `SugarLite. which was an extension of its already registered trademark `SUGAR FREE. and also that it was visually and structurally different from that of the appellant and further the competing marks were used for different class of goods as the trademark `SUGARLITE. of appellant was for milk/ dairy products falling in Class 29 whereas the impugned mark `SugarLite. of respondent was for sugar sweetener, a blend of sugar and stevia, falling in Class 30. Further, the respondent relying upon Vishnudas Kushandas v. Tah Vazir Sultan Tobacco Ltd & Anr, 366 1996 SCALE (5) 267 and Nandhini Delux v. Karnataka Cooperative Milk Producers Federation Limited, (201