ORDER :

1. Being aggrieved and dissatisfied with order dated 3.1.2022, passed below Exh.5 in Trade Mark Suit No.1 of 2017 by the learned 2nd Additional District Judge at Morbi, the original plaintiff has preferred the present A from Order under Order 43, Rule 1 of Code of Civil Procedure, 1908. The appellant is the original plaintiff and respondent is the original defendant (for the brevity the parties are referred to in this order as per the character assigned to them before learned trial Court).

2. The short facts giving rise to the present Appeal from Order are that the plaintiff is a private limited company engaged in the business of manufacturing, marketing and selling varieties of ceramic items under the Trademark and Trade name “Simero” since 2014 continuously, extensively, exclusively, openly and uninterruptedly throughout the country as well as abroad.

2.1 That the plaintiff applied for trademark registration of its trade name “Simero” along with other application in class-19 bearing application no.2936647 and application no.2963106. Same came to be granted by the Trademark registry in the name of the plaintiff and necessary certificate was issued.

2.2 The plaintiff is very well known for its various products. That the plaintiff has acquired reputation and goodwill in respect of the trademark.

2.3 That the defendant has adopted mark “Simora” under the ceramic product. That the plaintiff came to know about the advertisement published in local newspaper Sandesh dated 23.2.2017 having circulation in Morbi about the purchase of the property in the trade name Simora. That the defendant has filed Trade mark application being application no.3436770 in respect of trademark “Simora”, whereby defendant has specifically stated that user date is 21.1.2017.

2.4 That the plaintiff is registered proprietor of trademark “Simero”. That by virtue of registration, the plaintiff has exclusive and statutory right under Section 28 of the Trade mark Act 1991 and under Section 31 thereof, the registration is prima facie evidence of its validity. That the plaintiff has established the case of passing of action on the basis of prior user to secure an injunction. According to the plaintiff, he is prior user and registered proprietor of trademark Simero and both the parties are using same ceramic products. That both are carrying on business in city Morbi and both the products are available on the same counter/shop. That the defendant has not challenged the validity of the plaintiff’s registered trade mark “Simero”. That the defendant has adopted the identical and deceptively similar trade mark, which cause confusion and deception amongst the public at large.

2.5 The plaintiff has filed the suit, inter alia, seeking decree for permanent and perpetual injunction restraining the defendant from infringement of plaintiff’s trade mark “Simero” and passing of defendants goods as those of plaintiffs. Along with the plaint, the plaintiff has filed the application Exh.5 for interim injunction.

2.6 The defendant has filed its reply at Exh.25, inter alia, denying the contentions of the plaintiff. It is the contention of the defendant that plaint does not disclose cause of action for infringement registered trademark as well as passing of the trade mark “Simero”. It is also contended that defendant has not commenced the use of trade mark “Simero” and the plaintiff has filed the suit by suppressing material facts and by making false and frivolous statement. According to the defendant, it has yet not commenced business and, therefore, it cannot be said that the defendant is using the trade mark of the plaintiff. It is also contended that plaintiff is not the true proprietor and owner of the trade mark “Simero” as there is already business entities in the name of “Simero” and, therefore, plaintiff cannot be said to be lawful proprietor of the trade mark Simero. It is also contended that it is absolutely in the business of building material, tiles and ceramic indu