ORDER :

1. Being aggrieved by the order dated 7.11.2020 passed below Exh-5 in Trade Mark Suit No. 1 of 2020 by the 2nd Additional District Judge, Kalol, the original defendant has preferred the present Appeal from Order under Order 43 Rule 1 of the Code of Civil Procedure.

2. The appellant is the original defendant and defendant is the plaintiff before the trial Court. For the brevity and convenience, the parties are referred to in this order, as per their status before the trail Court.

3. The brief facts of the case of the plaintiff in nutshell is that the plaintiff is a Company incorporated under the Companies Act, 1956 and engaged in the business of manufacturing, marketing and selling of sugar confectioneries, milk chocolates containing nuts, fruits, raisins, caramel, chocolate confectionery and all types of confectioneries. That the plaintiff is well-known manufacturer of the said goods and having wide set-up and network in the country which have become very famous and acquire tremendous reputation and goodwill in the market and public at large for its good quality throughout the country. The plaintiff has also stated regarding the facts of various trademarks, which he has applied for Registry and details of that applications are incorporated in the plaint. That the plaintiff has obtained the necessary licence and certificate from the different authorities of the Central and State Governments. It is the further case of the plaintiff that the plaintiff has been using the trademark ‘MICHI’S’ with the device of a boy since 1996. That subsequently, in the year 2000, the said trademark of ‘MICHI’S’ with the device of a boy in red colour, is being used by the plaintiff in all of its products. That the plaintiff started using the trademark which is with an exquisite layout, stylization and a specific colour combination of red and white, since 2002. That, both these trademark with the aforesaid devices have become a household name by it’s exclusively, extensive and continuous use. That the defendant has started mark ‘MISHI’S’ along with colour combination red and white, which is exact imitation of the plaintiff’s trademark ‘MICHI’S’. According to the plaintiff, the defendant has deliberately imitated after having knowledge of the plaintiff’s trademark.

3.1 That, having come to the knowledge of this fact in January, 2018, the plaintiff issued Cease and Desist notice to the defendant. That the said notice was not served due to insufficient address. That, thereafter the plaintiff made inquiry in the market regarding use of the impugned trademark by the defendant and plaintiff did not find use of the mark ‘MISHI’S’ and anticipated that the defendant has stopped the manufacturing qua products bearing the trademark ‘MISHI’S’ as of the plaintiff. However, plaintiff received query regarding the product of the said trademark. That, therefore, the plaintiff has sent another legal notice to the defendant on 27.6.2020. That, the plaintiff has also filed Rectification Application against the present defendant for the several trademarks including house-mark ‘MISHI’S’ before the Trade Mark Registry. It is contended that use of mark ‘MISHI’S ‘along with red and white colour combination with the same manner as of the plaintiff’s, by the defendant is likely to cause confusion and deception in the market and which may seriously injure reputation of the plaintiff. That, the defendant is deliberately infringing the plaintiff’s registered trademark and the defendant is passing off its goods as that of the plaintiff’s. Therefore, the plaintiff has filed the suit for declaration, permanent and perpetual injunction and for passing off action as well as rendition of accounts against the defendant. Along with the plaint, the plaintiff has also moved an application for interim injunction at Exh-5.

4. The defendant has filed the written statement and has also produced the documentary evidence. According to the defendant, he is registered proprietor of mark ‘MISHI