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IN THE HIGH COURT OF DELHI AT NEW DELHI

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FAO (COMM) 193/2021 & CM APPL. 43309-43310/2021

RAJESH KUMAR MODANWAL

..... Appellant

Through

Mr.Rishabh Sahu, Adv.

versus

M/S A.R. SPARES PVT. LTD.

..... Respondent

Through

Mr.Ashok Mittal with Mr.Rishabh

Srivastava, Mr.Sanjay Aggarwal and

Ms.Radhika Arora, Advocates.

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Date of Decision: 13^th December, 2021

CORAM:

HON'BLE MR. JUSTICE MANMOHAN

HON'BLE MR. JUSTICE NAVIN CHAWLA

J U D G M E N T

MANMOHAN, J

1.

Present appeal has been filed challenging the impugned order dated

20

:

th

2.

Learned counsel for the Appellant-Defendant states that the

Appellant-Defendant is engaged in the business of sale and supply of

motorcycle auto spare parts included in class 12 under the Trade mark no

3718530 which was granted to the Appellant-Defendant on 3

February, 2020 passed by learned District Judge (Commercial Court)

West District, Tis Hazari Court. Appellant-Defendant also seeks a direction

to stay further proceedings in CS (COMM) No. 407/2019 till the disposal of

the present appeal.

rd January,

2018.

2021:DHC:4162-DB

3.

He states that the Respondent-Plaintiff instituted a Civil Suit

No. 407/2019 for permanent injunction restraining infringement of

trademark, delivery upon, rendition of accounts of profit along with

damages against the Appellant-Defendant for using trademark ‘AR Gold’.

4.

Learned counsel for the Appellant-Defendant states that the

Respondent-Plaintiff has been using the trademark “A.R” and A.R.

(DEVICE) which it purchased from its predecessors-in-title and has been

carrying on business of manufacturing, marketing, and exporting spare parts

for motor vehicles included in class 12 since 1971. He points out that the

Appellant-Defendant is using the trademark AR GOLD auto parts which

does not have any similarity with any other registered user in the same class

and is distinctive in design, colour, phonetics, etc. He emphasises that the

Appellant-Defendant was lawfully granted the said trademark by the

Registrar of the Trademark, Mumbai.

5.

He states that vide impugned order dated 20^th

6.

The Supreme Court in Wander Ltd and Anr. v. Antox India P. Ltd.,

1990 (supp) SCC 727, has held that in the appeals before the Division

Bench against the exercise of discretion by the Trial Court, the appellate

February 2020, the

District Judge without application of mind and without appreciating the fact

that the Appellant is himself the owner of the registered trademark “AR

GOLD” which is clearly distinguishable visually and phonetically from the

Respondent’s Trademark granted ex-parte injunction in favour of the

Respondent. He also points out that the learned District Judge has failed to

appreciate that the appellant does not deal in the items which the Plaintiff

Respondent deals in and there is no dishonest intention of the appellant to

use the trademark AR.

2021:DHC:4162-DB

court will not interfere with the exercise of such discretion of the court of

first instance and substitute its own discretion except where the discretion

has been shown to have been exercised arbitrarily or capriciously or

perversely or where the court had ignored the settled principle of law

regulating grant or refusal of interlocutory injunctions. An appeal against

exercise of discretion is said to be an appeal on principle.

7.

In the present case, the Trial Court has found that the marks of the

Appellant-Defendant and Respondent-Plaintiff are phonetically and visually

similar and as both the parties manufacture similar/cognate goods, there is

likelihood of confusion and deception. The relevant portion of the impugned

order is reproduced hereinbelow:-

2021:DHC:4162-DB

8.

The distinction now being sought to be drawn by learned counsel for

the Appellant-Defendant that, while the Appellant-Defendant manufactures

spare parts for motorcycle, the Respondent-