The court established that a prima facie case for a temporary injunction exists when the balance of convenience favors the party likely to suffer irreparable harm.

Order :

(ANOOP KUMAR DHAND, J.)

1. By way of filing this misc. appeal, a challenge has been led by the appellant to the impugned order dated 29.10.2018 passed by the Additional District Judge No. 5, Jaipur Metropolitan Jaipur (hereinafter referred to as ‘the Trial Judge’) by which Temporary Injunction application filed by the plaintiff/appellant (hereinafter referred to as ‘appellant’) under Order 39 Rule 1 and 2 CPC has been rejected.

2 Counsel for the appellant submits that a suit under the Trade Marks Act, 1999 (for short, ‘the Act of 1999’) was submitted by the appellant against the respondent restraining it to use the word ‘Swastik’ and its label on its product. Counsel submits that along with the suit a Temporary Injunction application under Order 39 Rule 1 and 2 CPC was also submitted for restraining the respondent to use the word ‘Swastik’ and its label on its products till final disposal of the suit. Counsel submits that the said application, filed by the appellant, was rejected by the learned Trial Judge vide order dated 29.10.2018. Counsel submits that as per the facts pleaded in the suit, the appellant is using the above Trade Mark and its label since 1950, while the respondent is using the aforesaid Trade Mark and its label since 1972. Counsel submits that although both the parties obtained registration of their Trade Marks from the competent authority in the year 1983 but the Trade Marks registered in favour of the respondent was later on cancelled and revoked by the Deputy Registrar of Trade Mark vide order dated 15.10.2018. Counsel submits that the aforesaid material aspect of the matter was not taken care of and overlooked by the trial Judge, while rejecting the application filed by the appellant. Counsel submits that the respondent cannot use the word ‘Swastik’ or its label as its Trade Mark for the products particularly when the same has cancelled/revoked by the Competent Authority vide order dated 15.10.2018, hence under these circumstances, interference of this Court is warranted. He also submitted that in similar matters, this Court has allowed the temporary injunction application submitted in the case of Rajani Products Vs. Bhagwan Das Harwani and Ors. while deciding the S.B. Civil Misc. Appeal No. 2198/2020 on 19.03.2025. In addition to the above judgment, counsel for the appellant has relied upon two judgments passed by the Delhi High Court in the case of Haldiram Bhujiawala and Anr. Vs. Anand Kumar Deepak Kumar and Ors. reported in 2015:DHC: 8832 and Pioneer Nuts and Bolts Pvt. Ltd. Vs. Goodwill Enterprises, reported in 2009(41) PTC 362 Del.

3. Per contra, counsel for the respondent opposed the arguments raised by counsel for the appellant and submitted that the appellant has failed to establish this fact on record that the Trade Mark and label ‘Swastik’ was not being used by the firm of defendant/ respondent as their brand and label since 1972. The respondent submitted Trade Mark application No. 406278 dated 02.06.1983 with the concerned authority for getting registration and same was allotted/registered to him. Counsel submits that the appellant submitted their trade mark application bearing No. 411334 on 29.09.1983 i.e. much after to the filing of application by the respondent. Counsel submits that both the appellant as well as the respondent were granted Trade Mark of Swastik for manufacturing and distribution of Mustar Oil, Edible Oil, Ground Nut Oil and Soyabeen Refined Oil for different districts and the appellant was granted the Registered Trade Mark for the aforesaid purpose for their selling Districts Sawaimadhopur, Kota, Bundi, Jhalawar, Udaipur, Chittorgarh and Jodhpur in the State of Rajasthan while the respondent was granted the aforesaid Trade Mark for the sale in the Districts of Ajmer, Bikaner and Tonk in the State of Rajasthan. Counsel submits that though the registration Trade Mark of the respondent was cancelled by the Deputy Registrar, not on merits, but on technical count along with