The main legal point established is the protection of registered trademarks under the Trade Marks Act, emphasizing the exclusive rights of the registered proprietor, infringement of trademarks, and the relief available in cases of infringement or passing off.

ORDER :

1. Being aggrieved by the order dated 20.9.2021 passed below Exh-5 in Trade Mark Suit No.1 of 2021 by the learned 3rd Additional District Judge, Gandhinagar, whereby the application filed by the appellant for obtaining interim injunction came to be rejected, 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 respondent is the original defendant 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 short facts as emerges from the record is as follows:

3.1 That the plaintiff is a partnership firm, inter alia, engaged in the business of manufacturing, marketing and selling electronic weighing scales and systems under the trademark AXPERT since 1.6.2000. That in the year 2000, one of its partner Mr. Harshadbhai Manibhai Patel coined and invented the said Mark and doing business and thereafter with a view to expansion of business, he found a partnership firm. That, he being a active partner of the firm, and adopter of the said mark, permitted the firm to use and utilise the said trademark for the benefit and betterment of the respective concern. That, Harshadbhai deemed it fit to assign the said trademark to the partnership firm and, therefore, he assigned the same to the firm by Assignment Deal dated 20.3.2020.

3.2 That the said trademark has acquired great popularity and significant presence in the market and recognition in the public at large and the consumers. That, the said mark is registered trademark and the plaintiff is the proprietor thereof. That as an registered proprietor, the plaintiff has every right to restrain the wrong doer and restrain them for infringement of its registered trademark.

3.3 That the defendant is also engaged in the same business and he is selling its products under the visually, identically, phonetically and structurally similar trademark EXPERT. That the plaintiff came to know about this fact recently. That the plaintiff is the prior user of the trademark AXPERT , whereas the defendant has started using the deceptively similar trademark EXPERT recently. According to the plaintiff, the defendant is very well within the knowledge about the goodwill and reputation of the plaintiff's registered trademark AXPERT, and yet the defendant has deliberately, wilfully and with malafide intention to encash the goodwill and reputation of the plaintiff's registered trademark, has adopted identical and/or deceptively similar trademark EXPERT. That, defendant applied for registration of trademark before the Trade Mark Registry which has been opposed by the plantiff by filing necessary proceeding, which is pending. That, the defendant is still providing the goods and services as per his new trademark ÉXPERT and therefore, the plaintiff was constrained to file the impugned Trademark Suit for permanent and perpetual injunction, and interim injunction against the defendant. Along with the Plaint, the plaintiff has preferred an Application at Exh-5 for ad-interim injunction.

4. The defendant has filed its reply at Exh-13 denying the averments made in the plaint. It has pointed out that the suit suffers from delay, laches, mis-joinder of parties and also from suppression of facts and the plaintiff has not come with clean hands. It has also contended that the Logo of the defendant is not at all visually, phonetically, structurally identical to the Logo of the plaintiff. Of course he has admitted the fact that his application of registration of Logo is pending before the trademark Registry and the plaintiff has raised objection thereof and entire proceedings is pending for further adjudication.

4.1 It is also contended that the defendant is engaged in the business of manufacturing, marketing and selling of industrial Trucks Scales, Weighing Scale, Industrial Automation and mainly deals with Truck and Traders