Gujarat High Court
M/S. Mangrol Oil Mill vs Vikas Oil Industries on 20 February, 2026
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026
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Reserved On : 15/12/2025
Pronounced On : 20/02/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 192 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 192 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
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Approved for Reporting Yes No
✔
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M/S. MANGROL OIL MILL & ORS.
Versus
VIKAS OIL INDUSTRIES & ANR.
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Appearance:
MR SHALIN MEHTA, SR.ADVOCATE with MR Y J JASANI, ADVOCATE for
MR PRATIK Y JASANI, ADVOCATE for the Appellants
MS RUSHVI N SHAH, MR ZAHID K SHAIKH, JAWAD Z SHAIKH AND
ARBAZ A SAIYED, ADVOCATES for Respondent No.1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 20/02/2026
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) Introduction:-
This Appeal from Order under the provisions of Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 read with Section 13 of the Commercial Courts Act, 2015, has been filed challenging the judgment and order dated 30.11.2024 passed by the Commercial Court/Additional District Judge, Morbi, in rejecting the interim injunction application Exh.5 under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 read with Sections 134 and 135 Page 1 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined of the Trade Marks Act, 1999, in Commercial Trade Mark Suit No.1 of 2022 preferred by the plaintiffs/appellants herein seeking perpetual injunction restraining infringement of trade mark and passing off as also for the rendition of accounts and damages.
2. It is the case of the plaintiffs (3 in number) that they are the users and registered trade mark holders of the mark "GULAB" for their products, namely Groundnut oil and/or other edible oils and cooking oils of whatsoever nature.
3. It seems that the ad-interim injunction application Exh.5 was earlier allowed vide order dated 11.08.2023. On a challenge by the defendants in Appeal from Order No. 206 of 2023, this Court has remitted the matter back for fresh consideration by considering all points of objections to the interim injunction application raised by the defendants. The judgment impugned herein dated 30.11.2024 has been passed on fresh consideration of the rival claims of the parties.
The original pleadings :-
4. It is noted by the trial court in the order impugned that in a composite suit for infringement of trade mark as well as passing off governed by Section 27(2), Sections 28 and 29 read with Sections 134 and 135 of the Trade Marks Act, the case of the plaintiffs is that being the holders of the registered trade mark, by virtue of Section 28(1), they have exclusive right over the mark. Three persons, namely a partnership firm and two companies, have joined together as the plaintiffs in one suit seeking for permanent injunction for infringement against two defendants companies stating that three entities belong to the same family and all being Page 2 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined registered trade mark users of mark "GULAB", having goodwill of their products with "GULAB" mark for sale of several types of edible oils, are entitled to join in one suit as plaintiffs, in order to avoid multiplicity of proceedings.
5. It is the case of the plaintiffs that the mark "GULAB" has been registered in Class-29 and they are using the "GULAB" logo since 1985 and the year 1988 to till date. Huge amount of money had been spent by the plaintiffs' company for increasing their business, in advertisement and marketing of their products with the logo "GULAB". Sales figure and the costing figures in tabulation form of different products of the plaintiffs company over several years have been given in the plaint to establish that the plaintiffs' companies have earned goodwill in the name "GULAB" for their products.
6. The defendants' are also producing and marketing edible oils with the mark "Rose". The plaintiffs' label was produced vide Mark 3/1 and label of the defendants was produced vide Mark 3/2. By making a comparison of both the labels, it was agitated by the plaintiffs before the trial court that there is a similarity in both the labels and since "Gulab" and "Rose" are having one and the same meaning and if both are put in the same place, there is grave likelihood of consumer being confused with the owner of the trade mark. It was the case of the plaintiffs before the trial court that though the defendants have also applied for registration of "ROSE" trade mark, but they have deliberately and with dishonest intention adopted "ROSE" as their label, which is equivalent to "GULAB"
7. The defendants, on the other hand, agitated by leading evidence before the trial Court that they have been continuously, Page 3 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined openly and uninterruptedly using the trade mark "ROSE", at least, from the year 1991 and the fact of usage of the trade mark "ROSE with the device" by the defendants was very much in the knowledge of the plaintiffs. The plaintiffs have not brought any action earlier for the reason that they were not using the registered trade mark "GULAB with the device of Rose flower" for a long time. The plaintiffs are non-users of the trade mark "GULAB with the device of Rose flower" and mere registration of the said device mark will not confer any right to them to seek protection much less ad-interim protection.
8. The plea of delay and acquiescence on the part of the plaintiffs in not bringing any action for a period of more than 31 years has been raised with the contention that the conduct of the plaintiffs disentitle them to seek interim injunction in the pending suit for infringement.
The Trial Court's findings/reasonings:-
9. From a perusal of the judgment impugned, it seems that the trial court has proceeded to discuss all the points agitated by the parties in the matter of ad-interim injunction. Noticing the statutory provisions of the Trade Marks Act, the learned trial court proceeded to take note of three tests to examine the claim of infringement; the first where the impugned trade mark is identical or similar to the registered trade mark; the second where the goods or services in relation to which the impugned trade mark is used, are identical or deceptively similar to the goods or services in relation to which the registered trade mark is used; and third depending on the answer to the above two tests, whether the impugned trade mark is likely to cause confusion in the mind of the Page 4 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined public or is likely to have association with the registered trade mark. It has noted that if the answer to all the above three tests is in affirmative, then it is to be held that the registered trade mark is infringed.
10. While deliberating on the principle of application of the first test, it was noted in paragraph No. '29' of the judgment impugned as under :-
"(29) Now the legislative text uses two phrases "identical" or "deceptively similar". The word "deceptively similar" is defined u/s 2(h) of the Act, which means [A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion]. The word "Identical"
means [where mark is reproduced without any modification or additions, all elements constituting the trade mark or where, viewed as a whole it contains differences so it is insignificant that they may go unnoticed by an average consumer].
(29.1) In case of 'Identical mark' the impugned mark is 'replica' of the registered mark, with insignificant and unnoticeable difference. Whereas, in case of 'deceptively similar' trademark, though impugned trademark may not be 'replica' of the registered trademark, however the impugned trademark resembles the registered trademark in a substantial degree on account of extensive use of the main and prominent features of registered mark.
(29.2) There are so many judicial precedents which have laid down and reiterated test for comparison of marks. The test laid down by landmark judicial precedent can be summarized as under:
i. The whole word/mark is to be considered. An ordinary man would not split a word or name, in a trade mark, into its components, but would go by the overall structural and phonetic similarity of the marks at the nature of the goods previously purchased, or of which he has been told and which he wants to purchase. It has to be examined whether the totality of the trademark of the defendants Page 5 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined is likely to cause deception or mistake in the minds of the persons accustomed to the existing trade mark of the plaintiff.
ii. In assessing deceptive similarity, the class of the customer who would purchase the product is relevant.
iii. The Court is required to examine whether the essential features of the plaintiff's mark are to be found in the mark of the defendant.
iv. The look/appearance, and the sound, of the trade marks, as well as the nature of the goods, are all relevant considerations. Surrounding circumstances are also relevant.
v. The resemblance may be phonetic, visual or in the basic idea represented by the plaintiff's mark.
The Court is required to apply both the phonetic and the visual tests. Structural similarity in both the mark has also to be compared.
vi. "Confusion" refers to the state of mind of the customer who, on seeing the mark, thinks that it differs from the mark on the goods which he has previously bought, but is doubtful whether that impression is not due to imperfect recollection. The question should be of first impression.
vii. Phonetic similarity has to be kept in mind.
The possibility of careless pronunciation and speech, both on the part of the buyer walking into the shop, as well as the shop assistant, is also required to be factored into consideration.
viii. A meticulous comparison of the words, syllable by syllable, should not be done ix. The matter has to be examined from the point of view of a person of average Page 6 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined intelligence and imperfect recollection. It has to be seen as to how such a purchaser would react to the trade mark, the association which he would form and how he would connect the trade marks with the goods he would be purchasing.
x. At times, ocular similarity may be sufficient to find possibility of confusion/deception, even if the marks are visually dissimilar, though ocular similarity, by itself, may not, generally, be the decisive test."
11. Further, considering the documents produced by the plaintiffs vide list at mark 4/1, it was noted:-
"(30) .......At this stage, considering the documents produced by plaintiffs vide list at Mark 4/1 First photograph/image is showing image of GULAB and below it image of Groundnut is also seen. In photo image mark 4/2. GULAB is shown in circle written in Gujarati language GULAB with two photoes of the model. In photo image mark 4/3, 4/4 and 4/5 only GULAB is shown in circle written in Gujarati language and below it image of oil drag and oil is shown and 100% Suddh is written.
In photo image mark 4/6, 4/7 only GULAB is shown in circle written in English language and below it image of oil drop and oil is shown and 100% Suddh is written and different packings of the oil is shown. In photo image mark 4/8 to 4/11 only GULAB is shown in circle written in English language and below it image of oil is shown and 100% Suddh is shown and below it double filtered Groundnut oil GULAB Gold is written and refined cotton seeds oil GULAB health, refined corn oil,GULAB prime, refined sun-flower GULAB sun gold is written. In photo image marks 4/12 to 4/22 various packaings of the GULAB is shown in circle written in English language and below it image of oil is shown and below it double filtered Groundnut oil GULAB Gold and refined cotton seeds oil GULAB health, refined corn oil,GULAB prime, refined sun-flower GULAB sun gold is written. In photo image mark 4/23 to 4/26 various packaging of plastic bags is shown and GULAB is shown in circle written in English language and below it image of oil is shown and below it double filtered Groundnut oil GULAB Gold and refined cotton seeds oil GULAB health, refined corn oil,GULAB prime, refined sun-flower GULAB sun gold is written.
Page 7 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined (31) Considering all these documents marks 4/1 to 4/26 only documents mark 4/1 is having image of GULAB i.e. flower which is registered trade marks of plaintiff. In all other documents marked 4/2 to 4/26 no-where image of GULAB flower is there, only GULAB is written either in Englishe language or in Gujarati language and all these images are printed in different colours. That means that by looking at first sight all these marks seems to be different."
12. It was, thus, opined that the impugned trade mark of the defendants does not seem identical and deceptively similar to the plaintiffs' registered trade mark and that the plaintiffs have failed to make out a strong prima facie case of infringement of its registered trade mark by the defendants.
13. The learned trial court has further noted that the defendants have also filed application for registration of their mark "ROSE" with the device of 'Rose flower' in respect of Groundnut oil and registration application in Class 29 had been advertised on dated 21.12.1999 under Section 20(1)(proviso) of the Trade Mark Act, in the General No. 1374 dated 16.08.2007 at page No. '5091' in the name of defendant No.1 firm. The plaintiffs have objected to the said registration application before the Trade Marks Registry in the year 2008; i.e. 30.01.2008. The case of the defendants is that they are concurrently, honestly and lawfully using their "ROSE" mark uninterruptedly since the year 1991, which is also placed on record by document mark 27/58, page 664 to 673, produced by the defendants.
14. The learned trial court has then opined that admittedly the factum of use of "ROSE" mark by the defendants is in the knowledge of the plaintiffs, at least, since the date (30.01.2008) Page 8 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined when the plaintiffs filed objection before the Trade Marks Registry on the application of the defendants seeking registration of "ROSE" trade mark. However, for the first time, the injunction proceedings have been brought before the Commercial Court in the year 2022. The plea of the defendants regarding delay and acquiescence on the part of the plaintiffs in seeking ad-interim injunction, is found to have substance .
15. The disclosure statement re: cause of action by the plaintiffs in paragraph Nos. '17' and '18' of the plaint that in or about the first week of September, 2022, the plaintiffs learnt about the defendants' fraudulent acts from the market of committing illegal acts of infringement of trade mark, passing off, imitation and falsification, is found unacceptable.
16. The trial court has further taken into consideration the documents produced by the defendants, namely the cash memos of the defendants' industries and the bills of the raw material to note that though the registration of trade mark "ROSE" is not granted to the defendants so far, but they are in the market with the mark "ROSE", at least, from the year 2008, when the defendants had applied for registration of the said mark.
17. The contention of the learned counsel for the plaintiffs that in a case of dishonest adoption of the mark, delay in bringing the action is not sufficient to defeat the grant of injunction, was considered to record that the defence taken by the defendants is substantive that they are not dishonest users of the mark "ROSE', as they are using the same openly and continuously, at least, since the year 2008. On the objection of the plaintiffs about the registration of the trade mark "ROSE", it was observed that the Page 9 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined registration of the trade mark can be refused when it is similar to the name already registered, which had acquired reputation and the use of the same deceives/confuses the public, and that the question of registration of the defendants' trade mark is still pending with the Trade Marks Registry.
18. While answering the question of similarity between two marks, the well recognised principle to consider the mark as a whole has also been taken into consideration. It was also noted that in deciding the question of similarity between two marks, the Courts have to approach it from the point of view of a man of average intelligence and of imperfect recollection, but it was observed that the said issue is yet to be decided by the Registrar, Trade Marks before whom the dispute is pending.
19. Taking into consideration of Section 17 of the Act, it was recorded by the trial court that one cannot split the mark and claim exclusivity over its insignificant components to attract Section 17(1) and all essential and prominent features of the mark as a whole would be protected by the Court. But, it was observed that the dispute as to whether the use of the mark for the products manufactured and sold by both the parties, which are essentially of the same categories and the users of the products being the same, can create an impression on the minds of the purchaser that the products sold by both the parties are of the same manufacture, is to be decided by the Registrar, Trade Marks.
20. Having said that, the trial court has further proceeded to say that the Registrar, Trade Marks has to decide the question of just change of the packaging, designs, print, colour etc. and whether the first user of the trade mark of "GULAB" can be protected or not Page 10 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined and that the act of defendants to adopt the trade mark "ROSE", subsequently, can be said to amounts to induce confusion into the minds of the users or buyers or creating confusion that it is the products of the plaintiffs and whether the said act of the defendants amounts to dishonest intention and bad faith on its part, is also to be decided by the Registrar, Trade Marks.
21. The trial court has then recorded that it has not gone into the aspects of the similarity of the marks as the said issue is pending before the registering authority. Further, on the aspect of device of the trade mark of the defendants amounts to encroachment of trade reputation and goodwill of the plaintiffs for similar types of goods in order to mislead the customers, which also affects the reputation and goodwill of the plaintiffs, it was observed that the same are not being considered at this stage, as the same are pending before the registering authority.
22. The trial court has also noted the contentions of the defendants that the same trade mark "GULAB" is also used by number of third parties and different entities as per the search reports taken from the website of the Trade Marks office. Not only the word "GULAB" but also the picture of "Gulab" flower has been registered in favour of the number of other persons for different types of products and even under the same Class of products for which the registration has been issued in favour of the plaintiffs' firm.
23. With the above, the learned trial court has answered the question as to whether the plaintiffs are entitled to the ad-interim injunction or not, in paragraph No. '49' in the following manner :-
Page 11 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined "(49) After considering the facts and circumstances of the present case, I am of the view that goodwill and reputation of the firm M/s.
Shree Mangrol Oil Mill has so closely associated with the trademark 'GULAB' that ordinary purchaser just identify the products of the plaintiffs by simply asking about the trademark and nothing else. The products of the plaintiffs are recognized and purchased only by name of trademark 'GULAB' on the packaging.
The owner of trademark or copyright is not expected to run after every infringer and thereby remain involved in litigation at the cost of his business time. If the impugned infringement is too trivial or insignificant and is not capable to harming his business interests, he may overlook and ignore petty violations till it assumes alarming proportions. A proprietor of a trade mark need not to take action against infringement which do not cause prejudice to its distinctiveness. Non taking of any action against other manufacturer or person using the trade mark of the plaintiffs itself is not sufficient to exonerate the defendants because it is the discretion of the plaintiffs not to take action against small type of infringers who are not causing any loss to it. Even pick and choose method adopted by the plaintiffs will not give license to defendants to violate the law. Herein this case, plaintiffs have not shown any details regarding loss due to use of the mark Rose by the defendants. Considering it, I am of the view that plaintiffs are not able to show that if the injunction as prayed by them is not granted, they well suffer irreparable loss, which cannot be compensated in terms of money.
24. On the defence taken by the defendants that the word "GULAB" is not an invented word, but is a generic and common dictionary word, which can be used by anyone and the plaintiffs cannot claim monopoly over the same, it was opined that the same is yet to be decided by the Registrar, Trade Marks before whom the proceedings are pending. It was also observed that the suit of the plaintiffs is with respect to its entire mark taken as a whole, i.e. Page 12 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined "GULAB mark with the device" and taking note of the mark as a whole whether the defendants' mark is deceptively similar to the plaintiffs' mark, is yet to be decided by the Registrar, Trade Marks and hence, the Court will not enter into the said issue. Further, on the plea of the defendants that the plaintiffs cannot have exclusivity over the word "GULAB" and the plaintiffs are claiming injunction with respect to the entire mark "GULAB" with device, it was reiterated that the said issue is pending before the Registrar, Trade Marks and hence needs no discussion.
25. Proceeding further, it was observed in paragraph No. '52.3' as under :-
"(52.3) As pointed out by the Hon'ble High Court, in case of infringement and passing off, the courts are required to decide the question of 'identicalness', 'deceptive similarity', 'confusion' which have to be decided on case to case basis, depending upon facts and circumstances of each case. Whether in a given case two marks are identical or similar would depend on large number of factors. I have already discussed and considered the test laid down by the several judicial pronouncement and have applied the same in the present case to reach to the above finding. The judgments cited by the Ld. Advocate for the defendants are in relation to facts and circumstances and mark involved in those cases."
26. The learned trial court has then concluded that it is not fully satisfied that the plaintiffs have succeeded to prove their case by producing reliable and cogent evidence.
27. The learned trial court has further noted that there is some substance in the case of the plaintiffs that the defendants are not the prior user of the "ROSE" mark, rather the plaintiffs and their predecessors of the mark "GULAB" are doing business or the registration of the plaintiffs' mark is since the year 1988. However, not only the plaintiffs used "GULAB" mark for their different Page 13 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined manufacturing items, but even the defendants are using "ROSE" mark, at least, from the year 2008, when they had applied for registration of the trade mark "ROSE". For the fact that the plaintiffs have filed objection to the application of the defendants before the Trade Marks Registry, it was held that the plaintiffs' case is also barred by delay, laches and acquiescence. Referring to the decision of remittal by this Court, it was held that where the word used in the trade mark is common and general with various meaning and different fields and since that the defendants used their trade mark without any interruption, the plaintiffs are not entitled to get injunction.
28. It was held that for granting injunction, which is an equitable relief, the party who remained quite for a long time and allowed another party to deal with the property exclusively, ordinarily, would not be entitled to an order of injunction.
29. In the end, the learned trial court while rejecting the application seeking ad-interim injunction, has concluded in paragraph No.'54' as under:-
"(54) Hence in view of the aforesaid facts and circumstances, I am of the view that defendants are proving their defence that plaintiffs have remained silent since the year 2008 from the date when they filed objections of granting Rose mark to the defendants, till the filing of this suit. Hence the case of plaintiffs is barred by the delay, latches and acquiesces as the Hon'ble the Chief Justice has primarily observed in R/Appeal from order NO.
206 of 2023 with Civil Application (For stay) No.1 of 2023 in R/Appeal from order No.206 of 2023.
Hence, the question of prima-facie case of the plaintiffs and balance of convenience and question of irreparable loss and irreparable injury are not in favor of the Plaintiffs.
Therefore, I answer issues no. (a) and(C) in Page 14 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined "Affirmative" and issues no (b), (d), (e) and (f) in "Negative". Hence, I pass the following order:
: O R D E R :
(1) (1) The application of Plaintiffs of Exh.5 under Order 39 Rule 1, 2 of the Civil Procedure Code read with under sections 134 and 135 of the Trade Marks Act, 1999 is hereby rejected.
(2) No order as to cost."
Appellants'/Plaintiffs' arguments:-
30. At the outset, we may record that we have noted the reasoning given in the judgment impugned, in extenso, for the vehement arguments made by the learned senior counsel for the appellants herein that the trial court has failed to record any categorical reasoning on the three ingredients for grant of ad-
interim injunction; namely prima facie case, balance of convenience and irreparable loss. It was vehemently argued by the learned senior counsel for the appellants that specific claim of the plaintiffs that it was the prior user of the "GULAB mark with the device of Rose flower" though has been believed by the trial court, inasmuch as, the plaintiffs have proved the registration of their mark in the year 1988, but the whole case of the plaintiffs has been rejected merely on the ground of delay, laches and acquiescence.
31. It was vehemently urged that the contention of the plaintiffs about the dishonest adoption of mark "ROSE" by the defendants for the same class of goods, was required to be dealt with. The test for comparison of marks in a matter of infringement claimed by the registered trade mark user/proprietor though discussed in paragraph No.'29.2' of the judgment, but has not been applied in the facts and circumstances of the present case.
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32. It was argued that the trial court was required to examine whether essential features of the plaintiffs' mark are found in the mark of the defendants; the look/appearance of the trade marks; as well as the nature of the goods alongwith other surrounding circumstances when taken into consideration whether the defendants' trade mark is deceptively similar for the class of goods of both the plaintiffs. The inquiry into the similarity of two trade marks and the likelihood of confusion in the minds of the customers by the use of deceptive trade mark by the defendants, was needed to be made with the standards of test of an ordinary man, who is the user of the goods in the market. The trial court has failed to make any such inquiry and each relevant questions have been left out, on the premise that the inquiry for registration is pending before the registering authority.
33. The contention of the learned senior counsel for the appellants is that the findings returned by the trial court that the plaintiffs have failed to make out a prima facie case for grant of ad- interim injunction is incoherent and unintelligible. It is difficult to cull out the reasoning for holding that the plaintiffs could not establish the prima facie case for grant of injunction for infringement or passing off.
34. It was vehemently argued that the specific case of the plaintiffs was that the defendants have not been able to prove the use of the trade mark "ROSE" with the device of Rose flower, for a long time or even since the year 2008. The plaintiffs have specifically pleaded and proved before the trial court that none of the documents appended by the defendants in the list, namely sales/purchase orders would even indicate that the defendants were manufacturing and selling their goods with the trade mark Page 16 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined "ROSE". The findings returned by the trial court in paragraph No. '41' (extracted hereinabove) have been challenged vehemently being absolutely perverse, against the evidence on record.
35. It was urged that the trial court has illegally brushed aside the specific case of the plaintiffs that by showing some documents such as telephone bills, receipts, light bills, purchasing of Groundnut bills, cotton Khod bills etc., which are unrelated to the dispute, the defendants cannot say that they are selling Groundnut edible oil using "ROSE" brand. The documents filed by the defendants with its list, considered by the trial court in paragraph No. '41' of the judgment impugned, cannot be considered as the proof of the fact that the defendants are engaged in the business of selling of edible oil with the use of "ROSE" brand label.
36. It was vehemently argued that the word "Rose" and "Gulab" carry the same meaning and the idea behind the use of word "Rose" by the defendants, is only to use the goodwill of the plaintiffs and get financial benefits from the reputation of the plaintiffs. The defendants are rather trying to damage the reputation of the plaintiffs in the market by using its mark.
37. It was vehemently argued that the trial court has acted illegally in not considering the material on record to examine the claim of the plaintiffs for grant of ad-interim injunction in the matter of infringement and passing off solely on the premise that the vital issues such as similarity of the two marks; the allegations of the word "Gulab" being a generic and common dictionary word and not an invented word and the plaintiffs cannot claim monopoly over the same; and whether the mark of the defendants is deceptively similar to the plaintiffs mark, are pending adjudication Page 17 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined before the Trade Marks Registry.
38. The argument is that the decision on the above noted aspects was imperative before rejecting the claim of the plaintiffs for grant of ad-interim injunction. The finding that the plaintiffs have failed to prove a prima facie case without adverting to the facts and circumstances of the case on appreciation of the material on record, is absolutely perverse.
39. The only ground for rejection of the prayer for ad-interim injunction, thus, is the delay, laches and acquiescence, allegedly on the part of the plaintiffs, that too based on the observations of the Division Bench of this Court in the order of remittal passed in the previous round. No independent finding has been recorded by the trial court by looking to the documentary material on record filed by the defendants, considering the contentions of the plaintiffs that none of them would prove that the defendants are in the market since a long time. There is no question of delay, laches and acquiescence on the part of the plaintiffs, when the defendants themselves have failed to establish their presence in the market with the trade mark "ROSE" for manufacturing and selling of edible oils.
40. It was, thus, vehemently submitted by the learned senior counsel for the appellants that the judgment of the trial court is bereft of any reasoning, though the discussion runs into 73 pages. It is difficult for anyone to comprehend the reasonings which are the basis of rejection of the claim of the plaintiffs/appellants for grant of ad-interim injunction.
41. Placing reliance is placed on the decision of the Apex Court in Page 18 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined Civil Appeal No. 10638 of 2025 arising out of SLP (C) No. 28489 of 2023, it was submitted that the relief in the injunction suit is not only based on the claim of infringement, but rather on the plea of passing off. In an infringement suit, it is not necessary for the plaintiffs to establish the use of its registered trade mark. Even a registered proprietor who has not commenced use, can sue for infringement. In a passing off action, the defendant's goods need not be identical to those of the plaintiff, they may be allied or even unrelated, but the misrepresentation is such that it affects or is likely to affect the plaintiff's business reputation. In an infringement action, the plaintiff is not required to establish the distinctiveness or goodwill of the mark, registration by itself affords right to seek protection. If the impugned mark is shown to be identical or deceptively similar to the registered mark, no further evidence of confusion or deception is necessary. In passing off action, proof of likelihood of confusion or deception is required while intention to deceive is not a necessary element in either action. It is well settled that actual deception or damage need not be proved. The test is whether confusion is probable in the minds of the average consumer due to the similarity in the marks or the overall get-up of the goods. It was vehemently argued that the action for trade mark infringement is a statutory remedy under the Trade Marks Act, 1999 available in relation to the registered trade mark and it is intended to safeguard the exclusive proprietary right that registration confers.
42. It was vehemently argued that the specific case of the plaintiffs that its registered trade mark is infringed by the defendants in the course of trade using the mark, i.e. identical or deceptively similar to the registered trade mark in relation to the similar goods, has not been adverted to rather has been brushed Page 19 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined aside by the trial court only on the ground of delay, laches and acquiescence on the part of the plaintiffs. The contention is that in view of the specific case of the plaintiffs about the dishonest adoption of trade mark "ROSE" by the defendants and the defendants being non-user of the said mark for a long time, there was a requirement to adjudicate both the issues before arriving at the conclusion that the plaintiffs are not entitled to get injunction because of the delay in approaching the Court, even though they were having knowledge of the defendant's trade mark since the year 2008.
43. With the above contentions, the learned senior counsel would vehemently submit that the judgment impugned being a non- speaking and perverse order, is liable to be set aside and the matter be remitted with the direction for fresh consideration.
Respondents'/Defendants' Arguments:-
44. The learned counsel for the respondents/defendants, on the other hand, would urge that in a suit for injunction and passing off, the plaintiff must prove its case on its own strength and must come with clean hands to disclose each and every facts clearly. It was submitted that the plaintiffs are changing their logo from time to time since the beginning. Attention of the Court is invited to paragraph No. '3.15' of the memo of the appeal and page No. '41' of the paper book to submit that the assertions of the plaintiffs of the use of mark ["GULAB" with the device of picture of "Rose flower"] for sale of edible oils including Groundnut oil is unacceptable, inasmuch as, apart from one other device marks of the plaintiffs though contain the word "GULAB", but do not have the picture of "Rose flower". There is no consistency in the Page 20 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined statement of the plaintiffs in the plaint itself about the use of the registered trade mark (device mark) with the word ["GULAB with the device of Rose flower"].
45. The attention of the Court is invited to the paragraph Nos. '5' and '6' of the plaint and the logos printed on the internal page Nos. '13' to '18' of the plaint, to submit that the plaintiffs themselves have admitted that they have been engaged in the business of various types of edible oils, wheat, foodgrains and the packaged 'raw peanuts (Groundnut seeds), and expanded their business in respect of 'flavoured and roasted peanuts (Namkeen) in different packaging with different logos containing the trade mark logo "GULAB" in Hindi and English script. As per the plaint averments, the logo with the word ["GULAB" in Hindi script and the device of Rose], as also the logo ["GULAB" in English with the device of Rose] were adopted by the plaintiffs during the year 2008 for "raw peanuts (Groundnut seeds)" and during the year 2016 for the "flavoured and roasted peanuts (Namkeen)".
46. The plaintiffs themselves have come out with the case that since the year 1985, they are using the trade mark "GULAB" as also the trade variants thereof in the form of labels and packaging containing and consisting of the name "GULAB" and/or the device of Gulab/Rose in distinctive mode for doing business of manufacturing, marketing and selling, amongst other goods, various types of edible oils in different packaging with the trade mark "GULAB" in logo form. Few photos/images of such packaging affixed with the labels in logo form or otherwise, are extracted at internal page Nos. '13' to '18' in paragraph No. '6' of the plaint.
47. The contention is that a bare perusal of the said logo form or Page 21 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined the photo images of the packaging affixed with the labels containing the trade mark "GULAB", indicates that the plaintiffs are using the word "GULAB" in English and Gujarati language with different devices and only one of them is having the picture of flower rose. The contention is that there is no categorical statement in the plaint nor it can be discerned from the plaint averments that the device containing the trade mark ["GULAB" with the picture of "Rose flower"] is being used continuously by the plaintiffs since the year 1988, and their products are identified distinctively in the market with the said device/label mark.
48. The contention is that the own case of the plaintiffs in paragraph No. '10' of the plaint is as under :-
"10. The Plaintiffs state that the adoption and use of the trade marks and the labels / packaging / artistic works containing the same as demonstrated hereinabove, is absolutely honest, bonafide as also lawful and the Plaintiff being 'the proprietor' thereof within the meaning of Common Law Rights as also under Sec.18(1) of the Trade Marks Act, 1999 and such proceedings are pending for the usual procedures before the Ld. Registrar of Trade Marks at Ahmedabad."
49. It was further submitted that none of the plaintiffs can claim monopoly over the labels/devices registered at different points of time with the word "GULAB". Even a perusal of the table at internal page Nos. '25' and '26' of the plaint, reveals that there was no consistency in the use of the logo/device marks with the word "GULAB" and 'Rose flower' for the sale of Groundnut oil and other edible oils.
50. The question as to whether the defendants have dishonestly adopted the word mark ["ROSE" with the device of "Rose"] in order to pass off their own goods as that of the plaintiffs by creating Page 22 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined confusion in the minds of the public, is required to be dealt with by the trial court upon leading of evidence by the parties on a comparison of the different logos/devices/labels with the word "GULAB" used by three different companies joined as plaintiffs in one infringement suit. This apart, the statement in the plaint that the cause of action to file the suit arose recently during the month of September, 2022 when the plaintiffs had noticed the defendants' Groundnut oil packed in 15 kg Tins bearing the label mark containing the word "ROSE" and device of 'Rose'/'Gulab' in the circle at the center, is misleading, inasmuch as, the defendants have proved not only their presence in the market, but also that the plaintiffs are well aware of the same. The decision of the trial court in refusing the grant of ad-interim injunction on the ground of delay, laches and acquiescence on the part of the plaintiffs, need no interference. The perversity sought to be shown in the judgment impugned by the learned senior counsel for the appellant is not about the weight of the reasoning of the trial court, rather more about the language used and the manner of writing of the judgment, which would have no bearing on the merits of the decision.
Analysis:
51. Having heard the learned counsels for the parties and perused the record, before proceeding further, we would like to advert to the law pertaining to grant of ad-interim injunction, specifically in a suit for infringement of the registered trade mark and passing off.
52. In a recent decision in Pernod Ricard India Private Limited and Another v/s. Karanveer Singh Chhabra [2025 Page 23 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined SCC OnLine SC 1701], the Apex Court has dealt with the appropriate analytical framework in evaluating the competing trade marks and discussed in details the legal principles governing grant of ad-interim injunction in a trade mark suit under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure. It is held therein :-
"36. The Trade Marks Act, 1999 does not prescribe any rigid or exhaustive criteria for determining whether a mark is likely to deceive or cause confusion. Each case must necessarily be decided on its own facts and circumstances, with judicial precedents serving to illuminate the applicable tests and guiding principles rather than to dictate outcomes.
36.1 As a general rule, a proprietor whose statutory or common law rights are infringed is entitled to seek an injunction to restrain further unlawful use. However, this remedy is not absolute. The considerations governing the grant of injunctions in trademark infringement actions broadly apply to passing off claims as well. That said, a fundamental distinction remains: while a registered proprietor may, upon proving infringement, seek to restrain all use of the infringing mark, a passing off action does not by itself confer an exclusive right. In appropriate cases, the court may mould relief in passing off so as to permit continued use by the defendant, provided it does not result in misrepresentation or deception.
36.2 The grant of injunction - whether for infringement or passing off - is ultimately governed by equitable principles and is subject to the general framework applicable to proprietary rights. Where actual infringement is established, that alone may justify injunctive relief; a plaintiff is not expected to wait for further acts of defiance. As judicially observed, "the life of a trademark depends upon the promptitude with which it is vindicated."
36.3 The principles laid down in American Cyanamid Co. v. Ethicon Ltd.30 continue to guide the Courts while determining interim injunction applications in trademark cases. The following criteria are generally applied:
(i) Serious question to be tried/triable issue: The plaintiff must show a genuine and substantial question fit for trial. It is not necessary to establish a likelihood of success at this stage, but the claim must be more than frivolous, vexatious or Page 24 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined speculative.
(ii) Likelihood of confusion/deception: Although a detailed analysis of merits is not warranted at the interlocutory stage, courts may assess the prima facie strength of the case and the probability of consumer confusion or deception. Where the likelihood of confusion is weak or speculative, interim relief may be declined at the threshold.
(iii) Balance of convenience: The court must weigh the inconvenience or harm that may result to either party from the grant or refusal of injunction. If the refusal would likely result in irreparable harm to the plaintiff's goodwill or mislead consumers, the balance of convenience may favor granting the injunction.
(iv) Irreparable harm: Where the use of the impugned mark by the defendant may lead to dilution of the plaintiff's brand identity, loss of consumer goodwill, or deception of the public - harms which are inherently difficult to quantify - the remedy of damages may be inadequate. In such cases, irreparable harm is presumed.
(v) Public interest: In matters involving public health, safety, or widely consumed goods, courts may consider whether the public interest warrants injunctive relief to prevent confusion or deception in the marketplace.
36.4 In conclusion, the grant of an interim injunction in trademark matters requires the court to consider multiple interrelated factors:
prima facie case, likelihood of confusion, relative merits of the parties' claims, balance of convenience, risk of irreparable harm, and the public interest. These considerations operate cumulatively, and the absence of any one of these may be sufficient to decline interim relief."
53. The scope of interference by the appellate court with the exercise of the discretion by the Court of the first instance in the matter of grant or refusal of interim injunction in trade mark infringement and passing off actions, has further been aligned in paragraph No. '19.8' as under :-Page 25 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026
NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined "19.8 In Wander Ltd. v. Antox India (P) Ltd. 19, this Court elaborated the principles governing the grant or refusal of interim injunctions in trademark infringement and passing off actions. It was underscored that appellate courts ought to be circumspect in interfering with the discretionary orders of lower courts in such matters. Interference is warranted only where the discretion has been exercised arbitrarily, capriciously, perversely, or in disregard of settled legal principles. The following paragraphs from the judgment are reproduced below for present purposes:
"13. On a consideration of the matter, we are afraid, the appellate bench fell into error on two important propositions.
The first is a misdirection in regard to the very scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order. The second pertains to the infirmities in the ratiocination as to the quality of Antox's alleged user of the trademark on which the passing-off action is founded. We shall deal with these two separately.
14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of 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 principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph, [(1960) 3 SCR 713 : AIR 1960 SC 1156] :
(SCR 721) "... These principles are well established, but as Page 26 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton, [1942 AC 130] '...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."
The appellate judgment does not seem to defer to this principle."
54. The Apex Court in Pernod Ricard India Private Limited (supra) has also discussed and elaborated on the scope of inquiry in an application for temporary injunction and taking note of the judicial pronouncements, it was recorded that the Court must avoid conducting the mini trial or delving into the merits of the case in detail. The exercise, at that stage, is limited to determination whether a prima facie case exists alongwith consideration of balance of convenience and potential irreparable injury. A word of caution was added by saying that "the focus is not to adjudicate the ultimate rights of the parties". The observations in paragraph No. '19.9' and '19.10' in Pernod Ricard India Private Limited (supra) are relevant to be noted hereinunder :-
"19.9 In Anand Prasad Agarwalla v. Tarkeshwar Prasad20, this Court emphasized that while considering an application for a temporary injunction, the court must avoid conducting a mini-trial or delving into the merits of the case in detail. The exercise at that stage is limited to determining whether a prima facie case exists, along with considerations of balance of convenience and potential irreparable injury. The focus is not to adjudicate the ultimate rights of the parties. The relevant paragraph reads as under:
"6. It may not be appropriate for any court to hold a mini- trial at the stage of grant of temporary injunction. As noticed by the Division Bench that there are two documents which indicated that there was a prima facie case to be investigated. Unless the sale certificate is set aside or declared to be a nullity, the same has legal validity and force. It cannot be said that no right could be derived from such a certificate. Secondly, when the contesting Page 27 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined respondents were in possession as evidenced by the record of rights, it cannot be said that such possession is by a trespasser. The claim of the contesting respondents is in their own right. The decisions referred to by the learned counsel for the appellant are in the context of there being no dispute as to ownership of the land and the possession was admittedly with a stranger and hence temporary injunction is not permissible. Therefore, we are of the view that the Division Bench has very correctly appreciated the matter and come to the conclusion in favour of the respondents. In these circumstances, we dismiss these appeals. We may notice that the time-bound directions issued by the Division Bench will have to be adhered to strictly by the parties concerned and the suits should be disposed of at an early date but not later than six months from the date of the communication of this order."
19.10 In a more recent decision in Ramakant Ambalal Choksi v. Harish Ambalal Choksi21, this Court reaffirmed the narrow scope of appellate interference with orders granting or refusing interlocutory injunctions. It was held that unless the discretion exercised by the trial court is shown to be perverse, arbitrary, or capricious, appellate courts ought not to substitute their views. The following paragraphs are relevant in this connection:
"33. In the case of Anand Prasad Agarwal v. Tarkeshwar Prasad, (2001) 5 SCC 568, it was held by this Court that it would not be appropriate for any court to hold a mini-trial at the stage of grant of temporary injunction.
34. The burden is on the plaintiff, by evidence aliunde by affidavit or otherwise, to prove that there is "a prima facie case" in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition precedent for the grant of temporary injunction. Prima facie case is not to be confused with prima facie title which has to be established on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the court would result in "irreparable injury" to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be Page 28 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined adequately compensated by way of damages. The third condition also is that "the balance of convenience" must be in favour of granting injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus, the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit. (See: Dalpat Kumar v. Prahlad Singh, (1992) 1 SCC 719.)"
55. Further, the Apex Court delved into the key distinction between "an action for trade infringement" and "a passing off action", to state as under :-
"29. Before delving further, it is important to note that a passing off action is a common law remedy designed to protect the goodwill and reputation of a trader against misrepresentation by another, which causes or is likely to cause confusion among consumers. As observed by James L.J, in Singer Manufacturing Co v. loog22, "no man is entitled to represent his goods as being the goods of another man". A passing off action applies to both registered and unregistered marks, and is rooted in the principle that one trader should not unfairly benefit from the reputation built by another. In contrast, an action for trademark infringement is a statutory remedy under the Trade Marks Act, 1999 available only in relation to registered trademarks. It is intended to safeguard the exclusive proprietary rights that registration confers. 29.1 A key distinction between the two lies in the requirements of proof. In an infringement action, the plaintiff is not required to establish the distinctiveness or goodwill of the mark - registration, by itself, affords the right to seek protection. If the impugned mark is shown to be identical or deceptively similar to the registered mark, no further evidence of confusion or deception is necessary. However, in a passing off action, the plaintiff must prove: (i) the existence of goodwill or reputation in the mark, (ii) a misrepresentation made by the defendant, and (iii) a likelihood of damage to the plaintiff's goodwill.
29.2 While an intent to deceive is not a necessary element in either action, passing off requires proof of a likelihood of confusion or deception. It is well settled that actual deception or damage need not be proved - the test is whether confusion is probable in the Page 29 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined mind of the average consumer due to the similarity in the marks or the overall get-up of the goods.
29.3 Another key distinction is that in a passing off action, the defendant's goods need not be identical to those of the plaintiff - they may be allied or even unrelated, provided the misrepresentation is such that it affects or is likely to affect the plaintiff's business reputation. In contrast, infringement requires that the unauthorised use relate to the same or similar goods or services for which the trademark is registered. 29.4 Additionally, in an infringement suit, it is not necessary for the plaintiff to establish use of the mark; even a registered proprietor who has not commenced use can sue for infringement. However, in a passing off action, the plaintiff must demonstrate prior and continuous use, and that the mark has acquired distinctiveness in the minds of the public."
56. From the statutory scheme of the Trade Marks Act, 1999, it was noted that the Act provides for comprehensive statutory framework for protecting the registered trade marks while also preserving the rights of the prior users through passing off actions. The Trade Marks Act clearly distinguishes between the absolute and relative grounds for refusal of registration and provides effective enforcement mechanism. The crucial guiding test is likelihood of confusion in the mind of an average consumer and not actual confusion, which serves as the touchstone for both refusal of registration and infringement proceedings.
57. Elaborating on the Rule of Anti-dissection, it was held in Pernod Ricard India Private Limited (supra) that a foundational principle in trade mark law is that the competing marks must be compared as a whole and not by dissecting them into individual components. This is known as the Anti-dissection rule which reflects the real- world manner in which consumers perceive trademarks-based on their overall impression, encompassing appearance, sound, structure, and commercial impression. The correct test for trademark infringement is Page 30 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined whether, when considered in its entirety, the defendant's mark is deceptively similar to the plaintiff's registered mark. It was noted that in Kaviraj Pandit Durga Dutt Sharma v/s. Navaratna Pharmaceuticals Laboratories (AIR 1965 SC 980), the Apex Court has expressly cautioned against isolating individual parts of the composite mark, as such an approach disregard how consumers actually experience and recall trade marks.
58. It was noted that while Section 17 of the Trade Marks Act, 1999 restricts exclusive rights to the trademark as a whole and does not confer protection over individual, non-distinctive components per se, the Courts may still identify dominant or essential features within a composite mark to assess the likelihood of confusion. However, this does not permit treating such features in isolation, rather, they must be evaluated in the context of the overall commercial impression created by the mark. The Anti- dissection rule, thus, aligns the legal test for infringement with the actual behaviour and perception of consumers in the market place. Consequently, in disputes involving composite marks, the mere presence of a shared or generic word in both the marks not, by itself, justify a finding of deceptive similarity.
59. It was held that the Courts must undertake a holistic comparison examining visual, phonetic, structural, and conceptual elements, to assess whether the overall impression created by the rival marks is likely to mislead an average consumer of ordinary intelligence and imperfect memory. If the marks, viewed in totality, convey distinct identities, the use of a common element- particularly if it is descriptive or laudatory-will not by itself amount to infringement. In determining whether a mark is deceptively similar to another, Courts often consider the dominant feature of Page 31 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined the mark - that is, the element which is most distinctive, memorable, and likely to influence consumer perception. While the anti-dissection rule requires marks to be compared in their entirety, Courts may still place emphasis on certain prominent or distinguishing elements, especially where such features significantly contribute to the overall commercial impression of the mark.
60. It was held that the principles of the anti-dissection rule and the dominant feature test, though seemingly in tension, are not mutually exclusive. Identifying a dominant feature can serve as an analytical aid in the holistic comparison of marks. In certain cases, an infringing component may overshadow the remainder of the mark to such an extent that confusion or deception becomes virtually inevitable. In such instances, Courts - while maintaining a contextual and fact-specific inquiry - may justifiably assign greater weight to the dominant element. However, emphasis on a dominant feature alone cannot be determinative; the ultimate test remains whether the mark, viewed as a whole, creates a deceptive similarity likely to mislead an average consumer of ordinary intelligence and imperfect recollection.
61. The Apex Court has further discussed the well established principles of trademark law that generic, descriptive, or laudatory terms - particularly those commonly used in a given trade - cannot be monopolized by any one proprietor. Even where such terms form part of a registered trademark, protection does not extend to those elements per se unless it is affirmatively shown that they have acquired secondary meaning - i.e., that the term has come to be exclusively and distinctively associated with the plaintiff's goods in the perception of the consuming public. It was noted that in Page 32 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined Godfrey Philips India Ltd. v/s. Girnar Food & Beverages Pvt. Ltd. [(2004) 5 SCC 25] the Apex Court has unequivocally held that descriptive words denoting the character or quality of goods are not capable of exclusive appropriation, except where they have acquired distinctiveness through prolonged, continuous and exclusive use.
62. The test in an action for infringement of trade mark is the average consumer test of imperfect recollection:
(a) grounded in the perception of the average consumer-a person who is reasonably well-informed, observant, and circumspect, but not an expert or overly analytical;
(b) the key feature of the test is the recognition that consumers rarely recall trade marks with perfect accuracy;
(c) the comparison must be made from the perspective of a person of average intelligence and imperfect recollection;
(d) the test also considers that the degree of consumer attentiveness may vary depending on the nature of the goods:
greater care may be exercised when purchasing luxury items than in case of everyday consumer goods [reference Amritdhara Pharmacy v/s. Satyadeo Gupta (AIR 1963 SC 449)] ,
(e) the test is equally relevant to both inherent and acquired distinctiveness, (i) a mark has inherent distinctiveness if, by its very form and appearance, it identifies trade origin to the average consumer at the time of registration, (ii) a mark may Page 33 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined acquire distinctiveness if, through consistent and prolonged use, it becomes associated by a significant portion of the relevant public with a particular commercial source-even if the consumer cannot name the source precisely, (iii) what matters is not that the consumer knows the producer, but that the mark serves as an indicator of origin, (iv) however, the test has limitations in cases involving product shapes or designs, where the features serve a technical function or add substantial value, policy considerations may override consumer perception;
(f) the doctrine of imperfect recollection, closely linked to the average consumer test, emphasizes the importance of first impression, where the Courts have cautioned against overly technical or granular comparisons of trademarks [James Crossley Eno v/s. William George Dunn [(H.L.(E) 1890, June 19, Vol. XV, App. Cas. Page 252] and Aristoc Ltd.
v/s. Rysta Ltd. [1945 SC 68 (House of Lords)].
63. The foundational test for assessing deceptive similarity as laid down in Pianotist Co. Ltd.'s Application [(1906) 23 RPC 774 at p. 777] has been discussed by the Apex Court in Pernod Ricard India Private Limited (supra) to note that Indian Courts continue to apply this holistic standard, which requires consideration of the visual and phonetic similarity of the marks, the nature of the goods, the class of consumers, and all surrounding circumstances. Paragraph Nos. '35.5' and '35.6' of Pernod Ricard India Private Limited (supra) are relevant to be noted hereinunder :-
"35.5. The foundational test for assessing deceptive similarity remains the Pianotist Test, as laid down in Pianotist Co. Ltd's Page 34 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined Application29 by Justice Parker. Indian courts continue to apply this holistic standard, which requires consideration of the visual and phonetic similarity of the marks, the nature of the goods, the class of consumers, and all surrounding circumstances. Justice Parker framed the test as follows:
"You must take the two words. You must judge of them, both by their look and by their sound. You must consider the goods to which they are applied, the nature and kind of customer who would be likely to buy the goods, and all the surrounding circumstances. You must further consider what is likely to happen if each of these trademarks is used in a normal way for the respective goods. If, considering all these circumstances, you come to the conclusion that there will be confusion - not necessarily that one trader will be passed off as another - but that there will be confusion in the mind of the public leading to confusion in the goods, then registration must be refused."
35.6. This multifactorial framework complements the modern average consumer test, ensuring that the analysis of deceptive similarity remains practical and context-sensitive. It focuses on the overall commercial impression left by the marks, rather than conducting a mechanical or analytical breakdown. Indian courts have consistently adopted this approach in determining the likelihood of confusion in both infringement and passing off actions."
64. In Cadila Healthcare Ltd. v/s. Cadila Pharmaceuticals Ltd. [(2001) 5 SCC 73], the Apex Court has laid down the parameters to be applied in passing off action involving deceptive similarity of marks. It would be useful to note paragraph Nos. '35' and '36' thereof as under :-
"35. Broadly stated, in an action for passing-off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors are to be considered:
(a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks i.e. both words and label works.
(b) The degree of resemblance between the marks, phonetically similar and hence similar in idea.
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(d) The similarity in the nature, character and performance of the goods of the rival traders.
(e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods.
(f) The mode of purchasing the goods or placing orders for the goods.
(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.
36. Weightage to be given to each of the aforesaid factors depending upon facts of each case and the same weightage cannot be given to each factor in every case."
65. Applying the test of grant of ad-interim injunction in "actions for trade mark infringement and passing off", elaborated above, we are required to examine the case of the plaintiffs/appellants herein, who claim to be a registered trade mark proprietors of the word mark "GULAB" and a composite mark of "GULAB with the device of Rose flower". At the outset, we have to remind ourselves that the inquiry, at this stage, is limited to determining whether a prima facie case exists, alongwith considerations of balance of convenience and potential irreparable injury. Our focus should be not to adjudicate the ultimate rights of the parties. We also remind ourselves that being the appellate court, we ought to be circumspect in interfering with the exercise of discretion of the trial court, to the extent that being an appellate court, we cannot reassess the material and seek to reach a conclusion different from one already reached by the trial court. We can interfere only if we find that the conclusion drawn by the trial court was not reasonably possible on the material on record. The scope of inquiry into the order of refusal of ad-interim injunction in the trade mark suit is to examine as to whether the discretion exercised by the trial court is Page 36 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined shown to be perverse, arbitrary or capricious by the appellants herein.
66. Coming to the facts of the present case, in the action brought by the plaintiffs seeking injunction on the plea of infringement of the registered trade mark and action of passing off against the defendants, we would first like to go through the plaint averments itself.
67. As per the case of the plaintiffs, a family business was initially started in 1966 by Nathwani family, the members of family of Late Shri Gokaldas Karshanbhai Nathwani as a single economic entity, under the name and style of "Mangrol Oil Mills" in respect of manufacturing, marketing and selling of various types of edible oils including Groundnut oil, Palmolein oil, Cotton Seeds oil, Soyabean oil and Agriculture produce i.e. Food Grains, Groundnut Seeds, Cattle Feed etc.. The business expanded over the period of time and the trade mark "GULAB" was adopted during the year 1997- 1998 at Mangrol by the Members of the Nathwani family who had started another business in the name of "Mahendra Traders" in respect of Wheat and Groundnut seeds. However, later on during 2011-2012, the business of Wheat and Groundnut seeds continued by the plaintiff No.1. As said, all family members of Nathwani family started another business under the name of "GULAB Oil and Food Industries" during the year 2010 at the village Vasai(East), District Thane in the State of Maharashtra. Another business at Village Shapar (Veraval), Rajkot was commended as an associated business concern of Nathwani family under the name and style of "Gulab Oil and Foods Pvt. Ltd." upon issuance of fresh Certificate of Incorporation dated 20.03.2007, which is the plaintiff No.2 herein. The erstwhile business under the name of "Pankaj Foods Page 37 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined and Pankaj Industries" had been continued until the plaintiff No.3 company namely "Gulab Oil & Food (Ahmedabad) Pvt. Ltd." had been incorporated vide Certificate of Incorporation dated 16.11.2019, and the taking over and merger of the business of the "Pankaj Foods and that of Pankaj Industries" with the plaintiff No.3 herein.
68. It is the case of the plaintiffs that the business under the name of "Pankaj Traders" at Chokha Bazar-Kalupur, Ahmedabad as also at Village Rakanpur, Taluka Kalol, District Gandhinagar was expanded during the year 1992 in respect of other edible oils including Groundnut oil and Blended Vegetable oil and accordingly, the existing trade mark (logo) contained the name "GULAB" was suitably modified by adding certain words and fields therein. From the averments of the plaint, pertinent is to note that the case of the plaintiffs is about adoption of the trade mark "GULAB" during the year 1997-1998 in respect of Wheat and Groundnut seeds and registration in Class 31 on 01.09.1993, whereas the word mark "GULAB" in Class-29 for edible oil (including Groundnut oil) was registered on 20.04.2002. The assertion in paragraph No. 4.1 of the plaint is that the plaintiffs while extending business under the name of 'Pankaj Traders', Village Rakanpur, Taluka Kalol, District Gandhinagar and Chokha Bazar, Kalupur, Ahmedabad during the year 1992 started the business in respect of other edible oils (other than Groundnut oil) by suitably amending the existing trade mark (logo) containing the name "GULAB".
69. The specimen of the amended logo of the trade mark "GULAB" as extracted therein, is reproduced hereinbelow :-
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70. The further assertion in paragraph No. '4.2' of the plaint are as under :-
"4.2 That, in addition to the aforestated amended logo of the trade mark 'GULAB OILS', the Plaintiffs have during the year 1992, also conceived, created and originated an another unique, original and eye aesthetic logo containing the name 'GULAB' in respect of and in relation to various type of 'Edible Oils' to be sold and traded in small packagings / bottles / containers. The Plaintiffs crave leave to furnish a photo image of the said newly created logo containing the name 'GULAB' in respect of sale of Edible Oils in small packagings / bottles / containers, is as under:-
71. Paragraph No. '4.3' of the plaint states that:-
"4.3 In the like manner, the business concern of Nathwani Family under the name of 'Pankaj Foods' (previously known as 'Pankaj Traders') at Chokha Bazar (Kalupur), Ahmedabad when started packing / selling / marketing 'Raw Peanuts (Ground Nut Seeds)' during the year 2008, also conceived, created and originated an another logo containing the trade mark 'GULAB' with the device of Rose in unique manner & form, i.e. GULAB. The Plaintiffs crave leave to furnish a photo image of the packaging for 'Raw Peanuts (Ground Nut Seeds)' the use thereof started during the year 2008, is as under:-Page 39 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026
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72. The further case of the plaintiffs is that in addition to the existing business of various types of edible oils, the business was expanded in the year 2016 in respect of 'Cold Press Groundnut Oil, Cold Press Sesame Oil (Till Oil), Cold Press Extra Virgin Coconut Oil, Cold Press Coconut Oil and Cold Press Mustard Oil' packed and sold in small packging / containers / bottles by pasting and affixing with labels and artistic works containing and consisting of the trade mark 'GULAB' in unique logo form so as to make the notable distinction between the edible oils in bigger packaging with those of such oils in small packgings.
73. The trade mark (logo) "GULAB in Hindi script with device of Rose" in addition to the existing logo "GULAB in English with the device of Rose" were adopted in respect of "raw peannuts (Groundnut Seeds)" and "flavoured and roasted peanuts being Namkeen" during the year 2008 and 2016; respectively.
74. The assertion in the plaint regarding adoption of the trade mark "GULAB", is that the plaintiffs have from time to time since 1985 honestly and bonafidely started using trade mark 'GULAB" as also trade variants thereof in the form of labels and pacakging containing and consisting of the name "GULAB" and/or device of Gulab/Rose in distinctive mode, fashion and style in the eye aesthetic artistic works so as to distinguish their aforesaid goods and services from the goods/services of the same and/or similar description of others in the markets.
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75. It is also stated that the plaintiffs are doing their established business of manufacturing, marketing and selling, among other goods various types of edible oils in different packagings, i.e. 15 kg. Tin Packaging; 15 Kg. Plastic Jar Packaging; 1 Ltr. Pouch Packaging as also in small packaging, containers and bottles. The photo images of few of such packaging affixed with the labels containing the trade mark "GULAB" in logo form, as shown in the plaint in paragraph No.6 of the plaint are to be extracted hereinunder :-
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76. As regards the details of sales turnover and advertisement expenses/sales promotionals recorded in the books of accounts of the plaintiffs, the averments are in paragraph No. 7.2 of the plaint in the tables containing year wise details in respect of the plaintiffs' companies. The assertions are that the total turnover of various products sold under the trade mark "GULAB" by the plaintiffs' Group concern during the year 2018-2019 exceeded to more than 1100 crores and that of the turnover of edible oils of the plaintiff No.3 during the year 2021-2022 reached to the tune of Rs. 1200 crores upon huge money, labour and skill employed by them.
77. The assertions in the plaint are that the trade mark "GULAB" has acquired distinctive and distinguishable significance among the traders and the consumers, and the goods sold under the trade mark "GULAB" are in high demand and the trade mark "GULAB" has always been exclusively associated and connected with the goods, the business and the business operations of the plaintiffs, being the premier brand in the markets and consequently, the said trade mark has acquired the esteemed position in the markets with the handsome reputation and niche goodwill accrued in favour of the plaintiffs.
78. In the plaint itself, the plaintiffs have furnished the details of grant of registrations of the trade mark "GULAB" under the provisions of the Trade Marks Act, 1999 in the name of plaintiff No.1 namely M/s. Mangrol Oil Mill to assert statutory protection against imitation besides common law rights accrued due to open, continuous, extensive and uninterrupted user since 1985, and submitted that the registrations are renewed from time to time and are valid and subsisting at present. One of label/the device mark registered with the word "Gulab" for Groundnut oil included in Page 42 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined Class-29 on application No. 497696 dated 13.09.1988, in the table in para '9' of the plaint, is relevant to be reproduced hereinunder, which is the bone of contention of the plaintiffs :-
79. The case of the plaintiffs, as disclosed in the plaint, is that the cause of action for filing the suit arose when the sales persons of the plaintiffs very recently during the month September, 2022 noticed the defendants' Groundnut oil packaged in 15 kg. Tin bearing label mark containing the word "Rose" with the letter "TM" in the circle at the top and thereunder the word 'Groundnut oil' and device of flower Rose/Gulab in circle at the center, a specimen of which is relevant to be reproduced herein under for ready reference :-
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80. While disclosing the cause of action, the plaintiffs have also disclosed that both the parties are invovled in the opposition proceedings before the Trade Mark Registry on an application moved by the defendant No.1 namely Vikas Oil Industries under the Trade Marks Act on 21.12.1999, in respect of a label containing the word "ROSE" at the top with the device of "Roses" (flowers) in circle at the center, wherein they have claimed user since 31.12.1991 for 'Groundnut oil' without any territorial jurisdiction. On the notice "advertisement before the acceptance" of the impugned said mark in respect of "Groundnut Oil for sale in the State of Gujarat and Rajasthan" in Trade Marks Journals No. 1374(Regular) dated 16.08.2007, which was made available to the public on 31.10.2007, the plaintiffs lodged Notice of opposition dated 29.01.2008 under Section 21(1) of the Trade Marks Act, opposing the grant of registration of the said trade mark. It is an admitted case of the plaintiffs that hearing on the application was conducted in the interregnum.
81. The defendants, in rebuttal, had pleaded that the plaintiffs have filed the suit by suppression and concealment of the material facts and in the table extracted in the written statement, have sought to demonstrate that the aforesaid device mark with the word "GULAB and the picture of flower Rose or Gulab'' was registered on application 497696 in the name of the proprietor "Gopaldas Gokaldas Trading as Shree Mangrol Oil Mill", single firm in Class-29 with the user claim "proposed to be used" for selling Groundnut oil in the States of Gujarat, Madhya Pradesh, Rajasthan and Maharashtra. The plaintiffs have got registration of the associated trade mark "GULAB" as a word mark in the proprietor name "Pragjibhai Gokaldas Nathwani (H.U.F.) trading as Shree Mangrol Oil Mill Hindu Undivided Family in Class-29 with the user Page 44 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined claim since 24.06.1985. The other device marks some of which have been extracted hereinbefore, have been shown in the table given in the written statement as having been registered on or after 24.06.1985. On some other applications filed by the plaintiffs to seek registration of the device mark with the word "Gulab' over the years, there are opposition notices by one Shri Parag Edible Oil Mills Ltd. and few other people.
82. It is, thus, the case of the defendants that the plaintiffs have obtained the registration with disclaimer such as while granting registration application No. 1135317 for user claim from 24.06.1985, it was clarified that the registration of the trade mark shall give no right to the exclusive use of the device of "drop" and all other descriptive matters appearing on the label; on application No.1135319 registered with the user claim from 24.06.1985, the condition of registration is that the registration of the trade mark shall give no right to the exclusive use of the word "GULAB". The contention, thus, is that different device / label marks with the word "GULAB", got registered by the plaintiffs do not give them exclusive right of user for the word "GULAB" or the device mark with different devices such as pictures of 'Roses', 'drop' etc., registered from time to time.
83. The contention is that as per the conditions narrated in the registration itself, the plaintiffs cannot claim monopoly over the word "GULAB" and this fact is totally suppressed by the plaintiffs in the table extracted in the plaint while giving details of the registration of the device/label and the word "GULAB" as the trade mark.
84. It is further contended that the plaintiffs have suppressed Page 45 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined that other litigations initiated by the third parties are pending against the plaintiff No.3 and that the Delhi High Court has restrained the plaintiffs from using the trade mark "GULAB". Moreover, the word "Gulab" being generic word being name of a flower, the plaintiffs cannot claim monopoly over the said mark merely by registration.
85. It is contended that all applications including the Trade Mark Application No.497696 in Class-29 are for registration of device marks and not the word "GULAB" per se. Three plaintiffs joined in one suit, have filed separate applications claiming separate rights over various devices/label marks and have suppressed material facts that many of such applications are opposed or objected. Moreover, the device mark registered on application No.497969 in Class-29 was 'proposed to be used'. The plaintiffs have not produced any documentary evidence to show that the plaintiffs are using the said device / label for the similar goods in time prior to user by the defendants. Mere obtaining registration of the device mark without use, will not give right to the plaintiffs to seek any remedy under the Trade Marks Act.
86. It was further contended that the suit is barred by delay, laches and acquiescence, inasmuch as, the defendant No.1 is using the trade mark "ROSE" alongwith label since September, 1991 continuously, openly and uninterruptedly. The plaintiffs are well aware of the existence of the defendant No.1 in the market, because the plaintiffs allegedly and the defendants actually are doing business in Saurashtra territory (Rajkot and other Districts) since beginning. The plaintiffs have also filed opposition proceedings against the defendant No.1 on application for trade mark where all the sale invoices and relevant documents Page 46 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined demonstrating the use of the trade mark "ROSE" alongwith label since 1991 continuously, has been submitted. There is not only gross delay, but also acquiescence of more than 31 years in filling the suit.
87. The defendants have also agitated about the maintainability of the joint suit by three entities without properly giving their connectivity.
88. Taking note of the pleadings of the rival parties, at the outset, we are required to note that it is an admitted fact of the matter that the plaintiffs are well aware of the defendants being in the market, at least, from the date when they filed written opposition to the trade mark application moved by the defendant No.1 to seek registration of the mark "ROSE" with the device, for the business of Groundnut oil in Class-29. In the registration application, the defendants have categorically pleaded that they are in the market since 1991. The dispute is about the similarity of the device mark, extracted hereinbefore, registration of which was obtained by the plaintiffs on application No.497696 dated 13.09.2008. From the pleadings in the written statement, the said registration was granted in the name of a proprietorship (single name) Shree Mangrol Oil Mill with the user claim "Proposed to be used". The plaintiffs have deliberately not diclosed these details in the table extracted in para '9' of the plaint.
89. There is nothing on record, which could even demonstrate that the plaintiffs had conducted their businesses with the device mark registered on the application No. 497696 registered on 13.09.1988.
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90. From a careful reading of the pleadings of the rival parties, we find prima facie that though the registration of the aforesaid device mark for the "proposed user" was obtained by the then proprietorship firm, but there is nothing on record to show that the plaintiffs, who are different entities incorporated over the period of time, have inherited the registered device mark or conducted their businesses for the sale of edible oil with the same.
91. Moreover, in the entire plaint, the plaintiffs have only claimed the right of exclusive use of the registered trade mark "GULAB" and have asserted that the plaintiffs are prior user of the trade mark "GULAB" in the form of label, packaging or otherwise since the year 1985 while holding valid registration thereof under the Trade Marks Act, 1999. The claim of the plaintiffs is about the fraudulent use of the word "ROSE" with or without pictorial device of Rose (flower) by the defendants while claiming statutory right based on the registration in the prior used trade mark "GULAB".
92. Considering the above, we are of the prima facie view that the words "Gulab" and "Rose" though are name of one (same) flower in Hindi and English language,but they do not carry the same impression as a word mark so as to be treated as deceptively similar. The two words namely "Gulab" and "Rose" are not phonetically similar. Even otherwise, if they are considered as a composite mark with the device of Rose flower, on a holistic comparison by examining the visual, phonetic, structural and conceptual element, it cannot be said that overall impression created by the rival device marks is likely to mislead an average consumer of ordinary intelligence and imperfect memory. If the rival device marks are viewed in totality, they do not convey any type of deceptive similarity. Use of common elements such as the Page 48 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined "picture of Rose flower" and "the Groundnuts in shell", in totality do not convey any distinct identities of the two marks, rather these elements appear to be descriptive or laudatory.
93. Applying the Anti-dissection rule, distinct words having no similar visual and phonetic, the dominant feature of two device marks, being typically the word "GULAB" and "ROSE" and the other pictorial representation of flower, namely "Gulab" or "Rose" and 'Groundnuts in shells', do not carry any inherent distinctiveness which can be associated with the product to create a consumer base/association so as to consider them uniquely associated with the plaintiffs' goods in the minds of the public. In contrast, the element such as "GULAB" with pictorial representation of the flower Gulab, are relatively generic, descriptive and common in use.
94. It is well settled principle of the trade marks law that generic, descriptive or laudatory terms or non-distinctive terms cannot be monopolised by any one proprietor, unless it is established that they have acquired the secondary meaning through extensive and exclusive use and are uniquely associated with the plaintiff's goods in the minds of the public. Such terms even if form part of the registered trade mark, protection cannot be extended to those elements per se unless shown to have acquired secondary meaning, i.e. that the term has come to be exclusively and distinctively associated with the plaintiff's goods in the perspective of the consuming public.
95. Conjointly applying the rule of Anti-dissection and dominant feature of the competing trade marks, we are of the prima facie view that the defendants' trade mark does not imitate the dominant Page 49 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined feature of the plaintiffs' trade mark, as such, there exists no real likelihood of confusion or false association in the mind of an average consumer exercising ordinary caution and imperfect recollection.
96. Coming to the passing off action, it is the common law rights of the trade mark owner recognised under Section 27(2) of the Trade Marks Act to take action against any person for passing off goods as the goods of another person. It is well settled that in a passing off action, the plaintiff must prove: (i) the existence of goodwill or reputation in the market; (ii) a misrepresentation made by the defendants and (iii) a likelihood of damage to the plaintiff's goodwill. The actual deception or damage need not to be proved and the test is whether the confusion is probable in the mind of the average consumer due to the similarity of the marks or the overall get-up of the goods. While an intent to deceive is not a necessary element, passing off action requires proof of a likelihood of confusion or deception.
97. The well established action for passing off involves the use of a name or get-up which is calculated to cause confusion with the goods of a particular rival trader. As relied in Khoday Distilleries Ltd. v/s Scotch Whisky Association [(2008) 10 SCC 723], it was noted in Bollinger, J. v/s. Costa Brava Wine Co. Ltd. (All ER P 805 B-C) that the law in this respect has been concerned with unfair competition between traders rather than with the deception of the public which may be caused by the defendant's conduct. The right of action known as a "passing-off" action is an action brought by the trader whose trade is likely to suffer from the deception practiced on the public. To seek injunction in a passing off action, the plaintiff must prove its presence in the market, must Page 50 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined demonstrate prior and continous use and that the mark has acquired distinctiveness in the minds of the public. The key distinction noticed in Pernod Richard India Ltd. (supra) is that while both actions seek to prevent unfair competition and protect against consumer confusion, an action for infringement offers broader statutory protection based solely on registration and ownership. In contrast, passing off is grounded in equitable principles and imposes a higher evidentiary burden to safeguard commercial goodwill under common law.
98. In the instance case, we have found that the plaintiffs have failed to provide a prima facie proof of a customer base by prior and continuous use of the lable/device mark registered in 1988 containing the word "GULAB with the device of flower" and further failed to demonstrate that the term "GULAB" has acquired secondary meaning exclusively pointing to the products of the plaintiffs. As observed earlier, the turnover and marketing expenditures with the mere mention of the duration of use as narrated in the plaint, is insufficient to displace the term "GULAB" with the device of flower, an inherent descriptive or laudatory character, to a distinctive mark closely connected with the presence of the plaintiffs' goods in the market or goodwill or reputation of the plaintiffs acquired with the said device mark.
99. In other words, the generic term "GULAB" or the device mark containing the word "GULAB with the picture of flower" a descriptive or laudatory character, have not been proved prima facie to have acquired such goodwill or reputation in the market that the same can be said to be exclusively and distinctively associated with the plaintiffs' goods in the perception of the average consumer. As has been held in Pernord Recard India Page 51 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined Private Limited (supra), even extensive use of the descriptive term does not justify exclusivity, unless such use has displaced the word's primary meaning, so that it now serves as a source identifier for the plaintiffs' goods in the minds of the consuming public.
100. The case put forth by the plaintiffs seeking ad-interim injunction on the plea of infringement of the registered trade mark "GULAB" with various devices and pictorial representations registered as device marks from time to time, does not serve as a prima facie proof so as to establish the first ingredient of grant of ad-interim injunction. In other words, the plaintiffs have failed to discharge their burden to prove that there is a prima facie case in their favour which needs adjudication at the trial.
101. Coming to the second and third ingredients of balance of convenience and irreparable injury, weighing competing possibilities or probabilities of likelihood of injury, we do not find the balance of convenience tilting in favour of granting injunction, moreso, having noticed the delay, laches and acquiescence on the part of the plaintiffs for not bringing any action for a period of, at least, 14 years, despite knowledge of the defendants claim of user of the impugned device mark since the year 1991, as mentioned in the registration application. In our considered opinion, the scale of balance of convenience rather leans in favour of the defendants, as grant of any ad-interim injunction would cause irreparable loss and injury to the defendants, as their business would be interrupted, even when the plaintiffs have failed to prove a prima facie case in their favour.
102. With the above, we do not find it a fit case to interfere in the Page 52 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined discretion exercised by the trial court in refusing the relief of ad- interim injunction. We may make it clear that the discussion made by us on the facts and circumstances of the rival parties, i.e. the pleadings of the rival parties and the material on record, is only in an effort to find out as to whether there is perversity in the decision of the trial court, i.e. as to whether the view taken by the trial court is a reasonable possible view based on the material available before it. The findings returned by us hereinbefore to record our satisfaction on the three ingredients of grant of ad-interim injunction, namely the prima facie case, balance of convenience and irreparable injury, is on a prima facie evaluation of the pleadings of the rival parties and the material on record. The detailed examination into the evidence led by the parties to establish their cases of user of the registered trade mark or the impugned trade mark, is still to be made by the trial court after the issues are framed during the trial.
103. Thus, in addition to the opinion drawn by the trial court, for the reasoning given above, we are of the considered view that the present is not a fit case for grant of ad-interim injunction in favour of the plaintiffs/appellants both on the plea of infringement of the registered trade mark and on the action for passing off goods by the defendants as that of the goods of the plaintiffs. We are, therefore, of the view that present appeal deserves dismissal on merits.
104. However, before parting with this order, on an extensive reading of the judgment impugned, we find that the trial court has erred in making observations to the effect that the vital issues such as: similarity of goods; the alleged deception of the trade mark by the defendants; and whether the plaintiffs can claim monopoly over Page 53 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined the registered trade mark, should be left out from adjudication as they are pending adjudication before the Trade Marks Registry. The trial court on a prima facie evaluation of the pleadings of the plaintiffs and the defendants and the appraisal of the material on record, was required to return a finding not only on the issues of delay, laches and acquiescence on the part of the plaintiffs, but also on the plaintiffs' plea of injunction in the action for infringement of the trade mark and passing off, brought before it. The vital issues of the nature of the trade mark, the degree of resemblance between the marks, similarity in the nature of the goods, the class of customers and any other surrounding circumstances which may be relevant in the extent of similarity or dis-similarity between the competing marks, were required to be weighed in the specific facts of the present case, to form a prima facie opinion, while deciding the ad-interim injunction application.
105. In so far as the Trade Marks Registry is concerned, its role is confined to the matter of grant or refusal of the registration, which though would be having some affect on the rights of the parties in the matter of use of the registered trade marks, but the Civil Court in an injunction suit for infringement of the trade mark, cannot leave the vital issues unanswered merely by saying that it has not gone to the merits of the matter because of the pending registration application in the Trade Marks Registry. It was incumbent upon the trial Court to answer the question of prima face case on evaluation of the pleadings and the material before it, while drawing a line for itself that it may not delve into the merits of the case in detail so as to conduct a mini trial. The exercise to determine whether a prima facie case exists alongwith consideration on the ingredients of balance of convenience and potential irreparable loss or injury in an ad-interim injunction Page 54 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined application under Order XXXIX Rules 1 & 2, CPC, was required to be undertaken by the trial Court, independent of the fact that the application of the defendants for registration of the impugned mark, is pending before the Trade Marks Registry. The trial Court was required to clearly answer the claim of the plaintiffs that the defendants are using deceptively similar trade mark for manufacturing and selling of similar nature of goods as that which the plaintiffs are manufacturing and selling with its registered trade mark. In this inquiry, the fact of the pendency of the application of the defendants before the Trade Marks Registry, is of no relevance, except to notice that the plaintiffs had filed objections in the year 2008 and despite that they have not proceeded to take any action for a period of 14 years.
106. Noticing the flaws in the writing of the judgment impugned which has no bearing on the merits of the present case, we would like to issue a word of caution to the Commercial Courts in the State that while writing their judgments, they shall first draw the issues keeping note of the legal principles and then deal with them in a structured manner, without burdening the judgments with unnecessary facts, opinions and citations.
107. The officers of the District Judiciary in the State shall keep in mind that superfluous deliberations in the process of adjudication takes away the credibility of the judgment and rather reflect on the integrity of the process. Such aberrations should be necessasrily avoided, as they do not properly convey the mind of the Judge- adjudicator and further burden the appellate court to indulge in an unwanted laborious evaluation of the record independently, bereft of the benefit of the views of the first adjudicator/trial court. The core components of the judgment writing are to be kept in mind by Page 55 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined one and all : (i) the introduction/opening; (ii) the narration of the facts; (iii) the issue formulation; (iv) marshalling of pleadings, facts and circumstances; (v) reasoning and the final order. Clarity, Coherence and the Conciseness are the 'essential 3-Cs' of the judgment writing. The judgment is designed to deliver the justice and not just a legal conclusion. A clear opening, focused facts/pleadings analysis and well structured reasoning on the legal principles are essential principles and techniques of the judgment writing.
108. The Judicial Academy of the State is imparting training at regular intervals to equip the judicial officers to evolve themselves in the Art of judgment writing. The copy of the judgment impugned passed by the Commercial Court be sent to the Judicial Academy of the State of Gujarat for using it for academic purposes, by masking the name and the identity of the judicial officer as also the case, and the date of the judgments, for deliberations in the workshop/seminars on the topic of 'Art of Judgment Writing'.
109. At the same time, we may make it clear that the observations made hereinabove having reflection on the quality of the impugned judgment, are not to be treated as adverse. Rather, they are advisory and shall have no bearing on the administrative evaluation of the working of the officer concerned. While masking the identity of both the case and the officer concerned, the judgment impugned of the trial court and this judgment in appeal shall also be circulated to the judicial officers of the District Courts across the State, by the Registrar General of the High Court, on the directions given above in the matter of "Art of Judgment Writing".
110. With the above, the present appeal stands dismissed. No Page 56 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026 NEUTRAL CITATION C/AO/192/2025 CAV JUDGMENT DATED: 20/02/2026 undefined order as to costs. The Civil Application is disposed of.
111. It is further clarified that the trial court shall decide the suit independently without being influenced by any of the observations made hereinabove.
(SUNITA AGARWAL, CJ ) (SANJEEV J.THAKER,J) C.M. JOSHI Page 57 of 57 Uploaded by C.M. JOSHI(HC01073) on Sat Feb 21 2026 Downloaded on : Wed Feb 25 23:13:31 IST 2026