The trial court's discretion in granting interim injunction is upheld; no prima facie case for temporary injunction was established.

JUDGMENT :

SUDESH BANSAL, J.

1. Appellant-plaintiff has preferred this Civil Misc. Appeal under Section 104 read with Order 43 Rule 1(r) CPC challenging the order dated 20.03.2021. passed by the Additional District Judge No. 3, Jaipur Metropolitan-1, Jaipur, dismissing the application for temporary injunction filed by the plaintiff as well as counter application for temporary injunction filed by the respondent-defendant vide common order.

2. Heard learned counsel for both parties and perused the material available on record.

3. It appears from the record that the appellant plaintiff is in use of a trademark “ORNATE JEWELS” in respect of bold, Diamond, Precious and Semi Precious Jewelry and got this trademark with logo registered in Class 35 before the Registrar of Trademark on 11.09.2020. The plaintiff claims the use of this trademark since 01.02.2012. The respondent-defendant is also using the trademark “ORNATE JEWELS” but with a altogether different logo in the same field and the trademark of respondent-defendant is also registered before the Registrar of Trademark since 10.05.2016, in Class 14. Both the parties having their trademark and logo registered claimed temporary injunction against each other for not to use the trademark “ORNATE JEWELS” during the course of the suit, claiming to be inventor and prior user of the trademark. It is not in dispute that both trademark are registered in different class and have different logo.

4. Learned Trial Court vide impugned order dated 20.03.2021 dismissed the stay applications of both the parties, with findings/observations that at the stage of temporary injunction, without evidence, it is not possible to decide the fact as to who is the prior user of the impugned trademark as there is no sufficient material on record. Further the trial Court referred the provisions of Sec. 28(3) of the Trademark Act, 1999 and observed that since both the parties have registered trademark, it is not permissible to grant injunction against either of the party, nonetheless both may claim protection against third party.

5. In addition, learned Trial Court has observed that since the Trademark of respondent is registered since 2016 and the appellant applied in 2018, therefore, during the course of registration of trademark of appellant, the Registrar Trademark raised an objection that the similar name of Trademark is already registered and sought explanation from the appellant, but this objection was replied by the appellant stating that the trademark of respondent bearing No. 3256088 is wholly different and not similar to his trademark. The trial Court has observed that the trademark of appellant is registered in Class 35 whereas the trademark of responded is registered in Class 14 and the logo of both trademark holders is entirely different. The trial Court has observed that in view of reply by the appellant before the Registrar of Trademark at the time of registration, the appellant is estopped to take a different stand, and now he cannot be permitted to state that the registered trademark of respondent is similar which is contrary to his own stand taken before the Registrar of Trade mark dealing with the objection of similarity of trademarks.

6. Learned Trial Court has referred to the provisions of Section 115 of the EVIDENCE ACT while applying the principle of estop