JUDGMENT :

The Civil Miscellaneous Appeal has been filed by the appellant against the order dated 02.02.2018 passed in I.A.No.156 of 2016 in O.S.No.148 of 2016 on the file of the learned Principal District Court, Salem.

2. The appellant is the plaintiff and the respondents are defendants in the suit. The appellant and the first respondent are brothers. The second respondent is said to be the manufacturer of goods under the trademark SACHA MOTI at Salem for sale of the same to the first respondent.

3. The appellant filed the suit being O.S.No.148 of 2016 for declaration to declare that the appellant is the proprietor of the trademark/label SACHA MOTI and is entitled to use and sale the goods Sabudana and other food products for human consumption under the said trademark and for permanent injunction restraining the respondents, their servants, agents, dealers and distributors from manufacturing, packing, marketing, advertising and selling the goods Sabudana and other food products for human consumption and other allied and cognate goods under the impugned trademark/label SACHA MOTI. Along with the suit, the appellant had filed I.A.No.156 of 2016 for temporary injunction.

4. Brief averments set out in the affidavit filed in support of I.A.No.156 of 2016 are as follows:

Gopal Sabu is the Managing Director of the appellant company. Originally, the company was incorporated as Sabu Export Salem Private Limited and subsequently, its name was changed as Sabu Trade Private Limited. The Managing Director of the appellant company viz., Gopal Sabu, his wife Kaushalyadebi Sabu, the 1st respondent and one Shivnarayan Sabu are the Directors of the appellant company. However, on 14.8.2015, the 1st respondent resigned from the Board of Directors of the appellant’s company.

4.1. The appellant company is engaged in the business of manufacturing, processing, marketing and trading of Sabudana and other edible produce for human consumption and claimed to have conceived and adopted one of the trademarks “SACHA MOTI” in the year 1984 through its parent/family concern, namely, M/s.Sabu Traders, in which Kaushalya Debi Sabu was the sole proprietor and using the same in respect of the said goods without any objection or interference from any corner and the appellant claimed to be the originator, first owner and proprietor of trademark “SACHA MOTI” by virtue of adoption of the same earlier by Kaushalya Debi Sabu and subsequently by the appellant.

4.2. Due to high quality of goods/products manufactured and marketed by the appellant under the trademark/label/device SACHA MOTI, the said trademark has become distinctive with the goods and business of the appellant. The consumers and the members of the trade associate and connect the goods/products under the trademark/ label SACHA MOTI exclusively with the appellant and none else. Thus, the trademark SACHA MOTI has become intellectual property of the appellant and as such the appellant was having the exclusive proprietary rights in the above said trademark to use the same either as trademark or otherwise to the exclusion of all others, including the respondents.

4.3. The first respondent was appointed as dealer in Madhya Pradesh to take care of the business of the appellant. After some time, when the appellant intended to register the trademark, he applied for the trademark on 23.2.2010. The Government sent a communication from which the appellant came to know that the first respondent obtained a trademark SACHA MOTI stealthily in the year 1997. The first respondent obtained the registration of the trademark concealing the prior facts during the time when he was the Director of the appellant company and first respondent acted against the interest of the company in violation of provisions of the Companies Act. As a prior long user of the trademark, the appellant claims right over the trademark SACHA MOTI and to prevent the first respondent from passing off his goods as the goods of the appellant.

5. Denying the averment