Mahesh Viraram Trivedi vs Mayank Jayantilal Thakkar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Guj) 1556

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. THAKER, J.
Mahesh Viraram Trivedi – Appellant
Versus
Mayank Jayantilal Thakkar – Respondent
R/Appeal From Order No. 152 of 2019 with Civil Application (For Stay) No. 1 of 2019
Decided On : 22-12-2022

Advocates Appeared:
For the Appellant : Mr. Harshit S. Tolia, Mr. Tejas S. Trivedi.
For the Respondent: Ms. Pooja Acharya with Dr. Rajesh H. Acharya.

Headnote:
Civil Procedure Code, 1908 – Order 7 Rule 11 – Order 43 Rule 1(r) – Section 20 – Trademarks Act, 1999 – Suit for declaration – Appellants are original defendants and respondent is plaintiff before trial Court – For the brevity and convenience, parties are referred to in this order as per character assigned to them before trial Court – Held, At this juncture, it is pertinent to note that for said ground, defendant has filed separate Application under Order 7 Rule 11 of CPC, which came to be rejected by trial Court by separate order, holding that Civil Court, has jurisdiction – Now, admittedly, this order of City Civil Court, has not been challenged by defendant – Therefore, at this interlocutory stage, observation of trial Court regarding fact that it has jurisdiction, has to be accepted. defendant ought to have challenged order of the trial Court rejecting his application filed under Order 7 Rule 11 on ground that no territorial jurisdiction with City Civil Court – Now, considering impugned order of trial Court, it clearly appears that trial Court has properly appreciated facts and law – View taken by learned trial Court in granting injunction in favour of plaintiff, is proper and this Court does not find any error in the said order – Disposed of.

JUDGMENT :

1. Being aggrieved and dissatisfied with the order dated 6.5.2019 passed by learned Judge, City Civil Court, Ahmedabad below Exh-6 and 7 filed in Regular Civil Suit No. 262 of 2015 whereby the defendants have been restrained from using the Trade Mark "RAJSHSHREE", "SHEETAL" and "MAYUR" during the pendency of the Suit, the original defendants have preferred this Appeal from Order under Order 43 Rule 1(r) of the CPC.

2. The appellants are the original defendants and respondent is the plaintiff before the trial Court. For the brevity and convenience, the parties are referred to in this order as per the character assigned to them before the trial Court.

3. The brief facts of the case is that the plaintiff has filed the Suit for declaration, Permanent and perpetual injunction for passing off action of Trade Mark against the defendants. Along with the plaint, the plaintiff has moved the application for interim injunction at Exh-6 and 7 before the trial Court. It is the case of the plaintiff that the plaintiff is a sole proprietorship concern engaged in the business of manufacturing, marketing and selling of Pepsi, Sharbat, juice and cold-drinks since long as household business i.e. very small scale since 1995-96 by adopting brand/ trademark SHEETAL. That thereafter in the year 2000, the plaintiff adopted and started two other brands/ trademarks RAJSHREE and MAYUR for the same business. According to the plaintiff, he is the true owner of the said Trademark SHEETAL, MAYUR and RAJSHREE and is using the same continuously, exclusively and uninterruptedly since then.

3.1 That the defendant No.1 is proprietorship of defendant No.3 and husband of defendant No.2 and defendant No.2 is also carrying on business of Pep cee with the trademark SHEETAL PEPCEE and MAYUR PEPSY, which is identical and deceptively similar to the plaintiff's trademark. That the defendant No.3 is the proprietor concern.

3.2 It is also the case of the plaintiff that the plaintiff is the first adopter and first user of the said trademarks since the year 1996. That on 7.3.2000, the plaintiff has applied for registration of Trademarks RAJSHREE, SHEETAL and MAYUR in Class 30 and 32 and the said application is pending. That the plaintiff has developed the said artwork of the device of girl with a candy in hand for the plaintiff products since its use. It is also contended that due to bonafide mistake and oversight, the user date was mentioned as 31.3.1998 for the trademark instead of 1996. It is also revealed that by virtue of prior honest adoption, long continuous and uninterrupted use of the Trademarks RAJSHREE, SHEETAL and MAYUR, it was identified and associated with plaintiff firm and is synonymous with the plaintiff's service and goods.

3.3 It is the case of the plaintiff that the defendant No.1 was previously working with the plaintiff as one of the employees for almost more than 12 years. That along with the said business, the plaintiff has expanded a new business for courier services and the plaintiff was unable to give personal attention in the said business and, therefore, the plaintiff gave the said business along with the premises on rent to defendant No.1 as per rent/ royalty agreements. That initially when the business was given on rent to the defendants, the defendants used to pay royalty to the plaintiff. But now, the defendants have started the same business with the identical marks.

3.4 It is contended that the plaintiff received a legal notice dated 13.11.2014 from the defendants only for the trademark RAJSHREE. That the plaintiff has also received letter dated 14.11.2014 from defendant No.1 stating that they have filed an application for the said trademark before the trademark Registry claiming the user dated from 2011. It is the case of the plaintiff that the business was only given on rent to run the factory to the defendants, but, the defendants with a malafide intention started using the said trademark and applied for the registration withou