A plaintiff must prove prior use of a trademark to obtain a temporary injunction, and delays in seeking relief can adversely affect the case.

ORDER

1. The instant civil misc. appeal under Section 43 Rule 1 CPC has been filed by appellant-plaintiff, feeling aggrieved by the order dated 10.2.2022 passed by the Additional District Judge No.10, Jaipur Metro-I, Headquarter Sanganer, District Jaipur, dismissing the application for temporary injunction.

2. Heard counsel for both parties, perused the impugned order and material available on record.

3. It appears that appellant-plaintiff instituted a civil suit for permanent injunction along with an application for temporary injunction under Section 134 of the Trade Marks Act, 1999 (hereinafter referred as 'the Act of 1999') against respondent-defendant for infringement of its registered trademark in brand name 'VANKON' under different classes i.e. 7, 9, 11, 21 and 35. The main dispute is in respect of infringement of trademark under class 9, wherein plaintiff has got registered its trademark in the brand name 'VANKON' having registration No.2823109 dated 9.10.2014. Respondent-defendant has got registered its trademark in brand name 'VANTON', under class 9 having registration No.3293881 dated 25.6.2016. In respect of other classes i.e. 7, 11, 21 and 35, counsel for respondent-defendant has stated that neither defendant has got any registration nor doing any business for appliances of such classes.

4. Plaintiff instituted the present suit along with application for temporary injunction on 23.7.2021 and admitted in para 11 of the suit that in the year 2020, plaintiff came to know that defendant is selling the products in market which are similar to plaintiff's product, plaintiff has moved rectification application on 3.2.2021 in respect of registered trademark of defendant. Plaintiff alleged that he has engaged in the business of Manufacturing/ Marketing /Trading /Service Provider of Apparatus, Appliances, Installation for Lighting, Steam Generating, Cooking, Refrigerating, Drying, Ventilating, Water Supply and Sanitary Purposes, Ceiling Lights, Flashlights (Torches), Electric Lamps, Light Bulbs, Electric Kettles, Kitchen Ranges (Ovens), Microwave Ovens (Cooking Apparatus), Roasters, Safety Lamps, Drying Apparatus and Installation, Cooking Apparatus and Installation, Bread Toasters, Coffee Machines Electric Installation for Heating and Lighting and among above the main products of the opponent are Wires, Cables and Switches included in Class 9 since 22.4.2008 and have been carrying on their business under the name and style of M/s Vankon Modular Private Limited and are popularly known for their brand name 'VANKON' in the market. Plaintiff pleaded that the trademark was originally conceived and honestly adopted by it in the year 2008 after a thorough search from the market that no such marks was in use or in existence for above mentioned products and since then, the said trademark has been used by it honestly, continuously and uninterruptedly. It was pleaded that defendant firm is proprietorship firm of Mr. Daulatram Lalwani, who was an ex employee of plaintiff-Company and by misusing the trade secret of plaintiff-Company, defendant started infringing the registered trademark of plaintiff under class 7, 9, 11, 21 and 35. It was further pleaded that plaintiff-Company came to know about infringement of its trademark in the year 2021 that defendant is using the trademark name of 'VANTON' since 2016 onwards and trade name of defendant is deceptively similar to the trade name of plaintiff 'VANKON', therefore, defendant be injuncted by way of permanent injunction not to use and mark its product in the name of 'VANTON'. Similar prayer has been made in the application for temporary injunction.

5. Respondent-defendant has filed reply to the application for temporary injunction and contended that its trade name 'VANTON' is wholly different from plaintiff's trade name and there is no similarity in the logo at all.

The Logo of plaintiff's-Company is:

The Logo of defendant's-Company is:

Further defendant denied the use of trade name 'VANKON' by pla