Rajasthan High Court - Jodhpur
Komal Meena vs Mayank Pareek on 21 September, 2022
Author: Dinesh Mehta
Bench: Dinesh Mehta
(1 of 4) [CMA-515/2021] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 515/2021 Komal Meena, Aged About 34 Years, 5, 43 Opp. Bagore Ki Haveli, Gangorghat Marg, Old City, Silawatwari, Udaipur - Rajasthan Also At 367/22, Bagore Ki Haveli, Gangorghat, Udaipur - 313 001 Rajasthan
----Appellant Versus Mayank Pareek S/o Kamal Pareek, 5, 43 - Near Gangor Ghat Opposite Bagore Ki Haveli, Udaipur - 313 001 Rajasthan Also At 23, Gangaur Ghat Marg, Opp. Cafe Edelweiss, Next To Bagore Ki Haveli, Udaipur - 313 001 Rajasthan
----Respondent For Appellant(s) : Mr. K.J. Upadhyaya and Mr. Prateek Surana For Respondent(s) : Mr. Gajendra Panwar JUSTICE DINESH MEHTA Order 21/09/2022
1. The present appeal has been preferred under Order 43 Rule 1 (r) of the Civil Procedure Code (hereinafter referred to as 'the Code') challenging the order dated 15.02.2021 passed by the learned Additional District Session Judge No.2, Udaipur (hereinafter referred to as 'the trial court').
2. Mr. Upadhyaya, learned counsel appearing for the appellant argued that the learned trial Court has seriously erred in rejecting appellant's application under Order 39 Rule 1 & 2 of the Code on (Downloaded on 27/09/2022 at 08:10:17 PM) (2 of 4) [CMA-515/2021] the basis that the respondent - defendant is having a registered trademark in his favour.
3. While maintaining that in a suit for passing off, a temporary injunction application is maintainable, learned counsel argued that in any case, as the defendant's trade mark is not registered, there was no impediment under any of the provisions of Trade Marks Act, 1999 (hereinafter referred to as 'the Act') to proceed with the temporary injunction application.
4. Mr. Panwar, learned counsel appearing for the respondent fairly admitted the fact that the defendant does not have a registered trademark in his favour. But at the same time he argued that the respondent's application for registration was filed prior to the plaintiff's application and that defendant's trade mark has not been registered by the authority in view of the objection lodged by the plaintiff - appellant.
5. Heard.
6. It will be apt to reproduce Section 27 & Section 28 of the Act:
"Section 27. No action for infringement of unregistered trade mark.--
(1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark.
(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof.
Section 28. Rights conferred by registration.-- (1) Subject to the other provisions of this Act, the registration of a trade mark shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of (Downloaded on 27/09/2022 at 08:10:17 PM) (3 of 4) [CMA-515/2021] the trade mark in the manner provided by this Act.
(2) The exclusive right to the use of a trade mark given under sub-section (1) shall be subject to any conditions and limitations to which the registration is subject. (3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration of the trade marks but each of those persons has otherwise the same rights as against other persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor."
7. A simple look of the above quoted provisions reveals that the embargo given under Section 28 of the Act is applicable only in case the defendant has a registered trade mark in his favour. Sub- section (2) of Section 27, permits institution of suit for passing off suit by a person who does not have his trade mark registered.
8. Admittedly, neither the appellant nor the defendant - respondent have a registered trade mark in their favour. The trial court has, therefore, proceeded on incorrect factual foundation. That apart, the bar to grant injunction given under Sections 27 and 28 of the Act does not apply, when none of the parties have registered trade mark in their favour.
9. In the face of the clear statuary position, the impugned order dated 15.02.2021 passed by the trial court is clearly contrary to law. The order impugned dated 15.02.2021 is thus, quashed and set aside.
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10. The trial court is directed to consider appellant's application under Order 39 Rule 1 & 2 of the Code afresh in accordance with law.
11. Both the parties shall appear before the trial court on 18.10.2022. The trial court shall heard rival parties and decide temporary injunction application in accordance with law as early as possible preferably before 31.12.2022.
12. The appeal is allowed; the stay application stands disposed of.
(DINESH MEHTA),J 77-Arvind/-
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