M/s. Rathi Irrigation Private Limited vs M/s. Aaram Plastics Pvt. Ltd.

Bela M. Trivedi, J.—With the consent of the learned counsels for the parties, the appeal is decided finally at the admission stage. The present appeal arises out of the order dt. 11.08.2010 passed by the Additional District & Sessions Judge No. 4, Jaipur City, Jaipur (hereinafter referred to as "the trial Court") in Civil Misc. Application No. 3/2009 in Suit No. 1/2009, whereby the trial Court has dismissed the application of the appellant-plaintiff seeking temporary injunction under Order XXXIX Rule 1 & 2 of CPC.

The appellant-plaintiff has filed the suit, alleging inter alia that the appellant company is incorporated under the provisions of Companies Act and is engaged in the business of manufacturing, trading and sale of agricultural products like H.D.P.E. pipes and sprinkler systems and other spare parts since 1998, for which the appellant was using the trademark ''Jindal. According to the appellant, the said trademark was registered under the Trademark Act, 1999 (hereinafter referred to as "the said Act") with the registration No. 1191728, and therefore, the appellant had an excursive right to use the said trademark, it is further case of the appellant-plaintiff that the trademark certificate was issued under Sec. 28 of the said Act on 09.05.2006 and the said trademark had acquired good reputation for the business of the plaintiff through out the Country. It is also case of the appellant that the respondent-defendant, who was also engaged in the same business as that of the appellant, was using the same trademark ''Jindal'' for his products in the open market, and was trying to pass off their goods as that of the appellant and to harm the well established reputation of the appellant. Thus, the appellant-plaintiff has filed the suit on the ground of the infringement of its registered trademark and sought necessary reliefs in that regard. The appellant also filed an application under Order XXXIX Rule 1 & 2 of CPC seeking temporary injunction, against the respondent-defendant for restraining: it from using the trademark ''Jindal'' for its business, pending the suit. The said application was resisted by the respondent-defendant contending inter alia that the respondent-defendant was using the trademark ''Jindal'' prior in point of time than the appellant, and the appellant had wrongly got the trademark ''Jindal'' registered in its favour under the said Act. According to the respondent-defendant, the appellant, could not have filed the suit in view of Section 33 & 34 of the said Act as the respondent was continuously using the said trademark from the date prior to its use by the appellant. The trial Court after hearing the learned counsels for the parties, dismissed the said application vide the impugned order against which the present appeal has been filed.

It has been sought to be submitted by the learned counsel Mr. Prateek Kasliwal, for the appellant that the documents, namely copies of invoices produced by the respondent-defendant were forged documents inasmuch as the word ''Jindal'' appearing in the invoices was subsequently written with the different ink and with different hand writings, only with a view to show that the respondent was using the said word ''Jindal'' prior to the use of the appellant. He also submitted that the trademark of the appellant having been registered under the said Act, the appellant was entitled to the rights conferred under Sec. 28 of the said Act. According to Mr. Kasliwal, the trial Court had mis-appreciated the documents on record "and wrongly dismissed the temporary injunction application of the appellant. However, the learned counsel Mr. Mahendra Shandilya, for the respondent has vehemently submitted that the order of trial Court being just and proper, this Court should not interfere with the same. According to him, the respondent-defendant had filed the invoices showing the prior use, and therefore, the defendant was entitled to the protection under. Sec. 34 of the said Act. He also submitted that the respondent has already filed an application before the competent authority under the Act for rectification of the appellant''s trademark, and as such the suit of the appellant-plaintiff-was not maintainable in the eye of law.

After having heard the learned counsels for the parties, and perusing the record of the case called for from the trial Court, it appears that the appellant-plaintiff has filed the suit on the ground of the alleged infringement of the registered trademark ''Jindal''. It is not disputed that the appellant-plaintiff had got its -trademark ''Jindal'' registered under the said Act and the necessary certificate was also issued by the competent authority in the year 2006. It cannot be gainsaid that the registration of the trademark would give to the registered proprietor, of the trademark, the exclusive right to use the trademark in relation to the goods in respect of which, the trademark was registered, and to obtain relief in respect of the infringement, of such trademark, as per Section 28 of the said Act. Hence, the Court finds substance in the submission made by the learned counsel Mr. Kasliwal, that the appellant would be entitled to the exclusive right to the use of the said trademark ''Jindal'' under Sec. 28 of the said Act.

Though it has been sought to be submitted by the learned counsel Mr. Shandilya, for the respondent that the respondent-defendant was using the said trademark prior, in point of time than the appellant, the Court does not find any substance in the said submission, inasmuch as apart from the fact that the original or carbon copy of the invoices have not been produced by the respondent, from the bare perusal of the photo-stat copies of the invoices produced, it clearly transpires that the word ''Jindal'' was subsequently written in some of the invoices with different ink and with different hand writings. There is no mention of the word ''Jindal'' in the invoices Nos. 654, 656, 1730, and 2561, and the said invoices have been wrongly relied upon by the trial Court. It is very pertinent to note that an invoices Nos. 102,155, 661 and 780, though the word ''Jindal'' appears, the same appears to have been written subsequently at the vacant places in the said invoices, with a view to show prior use of the said word by the respondent-defendant. It was also sought to be submitted by the learned counsel for the respondent that since the proceedings for rectification of the trademark of the appellant were pending before the Registrar, the suit of the appellant-plaintiff was liable to be stayed in view of Section 124(1)(i) of the said Act Apart from the fact that there is no application filed by the respondent before the trial Court under Sec. 124 of the said Act, it appears that there is nothing on record to suggest that such rectification application was filed by the defendant prior to filing of the suit by the appellant.

In view of the above, the appellant having established its prima facie case, and also having established that an irreparable loss would be caused to the appellant if the respondent is not restrained from using the trademark ''Jindal'' for its products, the Court is of the opinion that the trial Court has committed an illegality in not granting the temporary injunction in favour of the appellant as prayed for in the T.I. application. In that view of the matter, the present appeal deserves to be allowed. For the reasons stated hereinabove, the respondent-defendant is restrained from using the trademark ''Jindal'' for its products during the pendency of the said suit. The appeal stands allowed. Office is directed to send back the record of the suit to the trial Court forthwith.