JUDGMENT :

[N.V. ANJARIA, J.]

1. Both these Appeals from Order preferred by the original defendants, arise from common order dated 17.0.2022 passed by learned 6th Additional District Judge, Commercial Court, Mehsana, below application exhibit 5 read with exhibit 5(A) in Trademark Suit No. 1 of 2021. The Appeals from Order were heard together and are treated for disposal by this common judgment.

1.2 By impugned order, the Commercial Court below granted injunction against the defendants-appellants herein restraining them from using trademark ‘Apollo’ or any identical or deceptively similar trademark for manufacturing, marketing, promoting, etc., the goods of the plaintiff as mentioned in paragraph 21 of the application and thereby restraining the defendants from infringing plaintiff's trademark ‘Apollo’.

1.2.1 Injunction was granted against the defendants-appellants also in respect of using the said trademark "Apollo" in respect of the goods in question, thereby, restraining them from committing the act of passing off by misrepresenting and causing deception amongst the purchasers and traders.

2. The appellants of Appeal from Order No. 51 of 2022 are Apollo Infratech Pvt. Ltd. and Patel Ajitkumar Tribhovandas (HUF)-original defendants no. 2 and 3 respectively. The appellant of the other Appeal from Order is Apollo Parker Construction Equipment Pvt. Ltd.-original defendant no.1. Reference of the parties in this judgment is as per their original status in the Suit-Exhibit 5 proceedings.

Parties to the Suit

3. The plaintiff-respondent no.1 herein, is Ammann India Pvt. Ltd., a company registered under the Companies Act, 1956, on 16.02.1997. The plaintiff company changed its name to Apollo construction Equipment Pvt. Ltd on 06.01.2011, thereafter, became Ammann Apollo India Ltd. on 24.03.2013. It changed its name as Ammann Apollo India Pvt. Ltd. on 09.06.2013 and finally became Ammann India Pvt. Ltd. since 10.01.2017.

3.1 Defendant no.1 Apollo Parker Construction Equipment Pvt. Ltd., is also a private limited company engaged in the business of manufacturing of road construction equipment under the disputed trademark "Apollo". Defendant no.2-Apollo Infratech Pvt. Ltd. is a sister concern. The Promoters and Directors of both the said defendants are the same. Defendant no.3 is an HUF represented by Ajitkumar Patel who is Karta and owner of the trademark "Apollo". Said Ajitkumar Director of defendants no.1 and 2 companies has permitted them to use its trademark.

Basic Facts About Registration

3.2 The plaintiff is registered proprietor of trade mark ‘Apollo’ under trade mark no. 1598383 in class 7 registered since 06.09.2007 claiming use from 07.10.1986 in respect of 'construction, road construction machinery for maintenance equipment, earth moving machinery, asphalt paver finisher, drum type & batch type asphalt mixing, plants, soil stabilization plants, cold mixing plants, bitumen pressure distributors, kerb laying machines, compaction equipment, crushing & screening equipment, mobile construction equipment'. The said trade mark was assigned to plaintiff by Gujarat Apollo Industries Limited under Deed of Assignment dated 09.04.2013.

3.2.1 Defendant No.2 was the original registered proprietor of trade mark APOLLO under Trade Mark No.1698844 in Class 7 registered since 13.06.2008 claiming use from 18.04.2008 in respect of 'all type of construction machinery and construction equipment in relation to road and building construction included in class 7', which registered trade mark, by virtue of a Deed of Assignment dated 04.05.2013 came to be assigned in favour of defendant No.3. The registration of both the trade marks are in respect of all types of construction machinery in Class-7.

3.2.2 The aforesaid trade mark was not renewed as a result of which it was removed from the Register of Trade Marks upon expiry of 10 years from 13.06.2008. Application to register the said trade mark was opposed by Gujarat Apollo Industries Limited, the predecessor of th