JUDGMENT

ANISH DAYAL, J.

I.A. 13154/2023 (Application under Order XXXIX Rule 4 of CPC) and I.A.

8888/2023 (Application under Order XXXIX Rules 1 and 2 of CPC)

1. The suit has been filed seeking a decree of permanent injunction restraining the defendants and all those acting for, and on their behalf, from using the marks , (hereinafter referred to as “‘JINDAL’ marks”) jointly or severally, or any other marks deceptively similar to the plaintiff’s trademark ‘JINDAL’, and other attendant reliefs.

2. An ad interim injunction was granted on 09th May, 2023, in favour of plaintiff. The essential grievance of the plaintiff is that defendant has no registration for the mark ‘JINDAL’ in respect of Poly Vinyl Chloride (hereinafter referred to as “PVC”) pipes and is the registered holder of the mark ‘J-PLEX’ w.e.f. 18th May, 2020, but had started using the mark ‘JINDAL’ for PVC pipes.

3. Pictures of PVC pipes manufactured by defendant as provided in para 26 of the plaint have been extracted as under:

4. Plaintiff asserted prior user in respect of the mark ‘JINDAL’ for PVC pipes, and registration of the mark with effect from 01st September 2006. Accordingly, the Court observed as under:

“25. Mr. Abhishek Grover, learned Counsel for the Defendant 1 is unable to support the use, by the defendant, of the mark “JINDAL” for PVC pipes. He merely asserts that Defendant 1 has the device mark “JINDAL”

registered in its favour.

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29. In that view of the matter, at this prima facie stage, there is no reason for the court not to believe the assertion in the plaint that the defendant was, till recently, using its registered mark J PLEX for PVC pipes and has only recently started using the mark JINDAL on such pipes.

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31. Prima facie, therefore, the user, by the Defendant 1, of JINDAL for its PVC pipes and fittings is recent and, in any event, later in point of time both to the registration and the user of the said mark in favour of the plaintiff for identical PVC pipes.

32. Moreover, even applying the principle of balance of convenience at this ad interim stage, the court does not find that the defendant would be subjected to any serious prejudice if it is restrained from using JINDAL on its PVC pipes, as it is already using the mark J PLEX, which is registered in the defendant's favour for PVC pipes.

33. The Court does not see how Defendant 1, while it has already obtained registration for the mark J PLEX for pipes, has chosen to include, on the body of the PVC pipes, the mark JINDAL, which stands registered for the PVC pipes in favour of the plaintiff.

34. A prima facie case of infringement is, therefore, made out.

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46. Till the next date of hearing, the defendants as well as all others acting on their behalf shall stand restrained from using the marks or any other mark deceptively similar to the Plaintiff's trademark “JINDAL” in any manner whatsoever on PVC pipes or any goods allied thereto.”

5. Defendants after entering appearance filed application under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) claiming that defendants have been engaged in the business of manufacturing and selling a wide variety of sanitary and bathroom fittings, including pipe-fittings made out of PPR and PVC pipes, for the last several decades.

6. Defendant no. 1 was started as a partnership firm by the father of defendant no. 2, Sh. Lal Chand, and is presently a sole proprietorship under defendant no. 2, Shri Ram Niwas Jindal. It is submitted that they had adopted and started using the mark ‘JINDAL’ in respect of sanitaryware and bathroom fittings in PVC pipes from 1st July, 2006, and therefore, using the trademark ‘JINDAL’ as part of the primary essential and distinctive part of the family name. In the year 2009, defendant no. 2 incorporated defendant no.1 company under the name and style of ‘Jindal Sanitaryware Private Limited’. Prior to said incorporation, defendant no. 1 had been duly permitted by defenda