ORDER :

1. Being aggrieved by the order dated 12.2.2019 passed below Exhs-5 and 10 in Trade Mark Suit No. 8 of 2018 by the 10th Additional District Judge, Surat, the original plaintiff has preferred the present Appeal from Order under Order 43 Rule 1(r) of the Code of Civil Procedure.

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

3. The plaintiff has filed the suit for injunction and Account of profits against infringement and passing off in respect of the trademark of the plaintiff by the defendants. It is the case of the plaintiff that plaintiff’s trademark JIVRAJ-9 more particularly numbering 9 of the plaintiff has acquired distinct and high reputation and goodwill and the plaintiff is having statutory protection by various registered trademarks. That the defendants recently adopted the mark containing the words ‘9’ despite of the sufficient knowledge that the plaintiff is in market since around 1970 with the mark and device of number ‘9’. That, the defendant has adopted DOUBLE HAATHI PREMIUM TEA NO.9 and thereby substantially highlighting the numerical 9 on front fascia and backfascia of the label which is identical to one of the essential features of the plaintiff’s registered trademark and thereby committed infringement of trademark of the plaintiff. That by misuse of identical and / or deceptively similar trademark, the defendant is committing act of infringement and passing off. On the aforesaid basis, the plaintiff filed the aforesaid Suit. Along with the plaint, the plaintiff has moved an application for interim injunction.

4. The defendant has resisted the same and has also filed an application under Order 7 Rule 11. The defendant has contended that the label of the defendant is entirely different that of plaintiff and the entire colour scheme and the mark and other materials placed in the label are different from that of the plaintiff’s label. It is also contended that merely use of number 9 cannot be protected and is not a subject matter of separate registration and, therefore, the plaintiff cannot claim exclusive right over the number 9. It is also contended that the trademark of the plaintiff is registered subject to the restriction provided under the Trade Marks Act, 1999. It is also contended that as there is no iota of similarity between the trademark of the plaintiff and the defendants, the suit of the plaintiff is liable to be rejected.

4.1 It is further contended that the plaintiff is selling Tea under the label of “JIVRAJ-9”, while the defendant is selling its Tea under the label of “DOUBLE HAATHI” Tea. It is contended that, however, under the said label, Premium Tea No.9 has been mentioned over which the plaintiff has objection. According to the defendant, the Section 9 of the Trade Marks Act bars the registration of the non-distinctive trademark and as such No.9 is not the subject matter - registration of the trademark. It is prayed by the defendant to reject the interim injunction application. The defendant has also filed an application under Order 7 Rule 11 for rejection of the plaint on the ground that the plaint does not disclose cause of action which is exhibited at Exh-10.

5. The learned trial Court has heard both the applications i.e. application at Exh-5 for interim injunction as filed by the plaintiff and application at Exh-10 for rejection of the plaint, as filed by the defendants. The learned trial Court has rejected both the applications. Against the rejection of prayer for interim injunction, the application at Exh-5, the plaintiff has preferred the present Appeal from Order.

6. Heard learned advocate Mr. Chirag Bhatt with learned advocate Anay Amin for learned advocate Mr. Y.J. Trivedi for the plaintiff-appellant and learned advocate Mr. Akshay Vakil for the respondent No.1- defendant No.1. Though served, none has appeared for respondent