Madhya Pradesh High Court
Surindar Pal Singh vs Ichhadhari Lassi Old Ichhadhari Lassi ... on 6 June, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
MISC. APPEAL No. 1996 of 2024
BETWEEN :-
SURINDAR PAL SINGH S/O LATE AJEET
SINGH TATWAR, AGED ABOUT 56 YEARS, R/O
620, GORAKHPUR, MAIN ROAD, POST
OFFICE JABALPUR (MADHYA PRADESH)
....APPELLANT
(BY SHRI SAMARTH SHRIVASTAVA - ADVOCATE)
AND
1. ICHHADHARI LASSI OLD ICHHADHARI
LASSI AND NEW ICHHADHARI
BHUPENDRA SINGH TALWAR S/O
AJEET SINGH TALWAR R/O 1147,
JAHANGIRABAD WRIGHT TOWN
JABALPUR (MADHYA PRADESH)
2. BHUPENDRA SINGH TALWAR S/O AJEET
SINGH TALWAR R/O 620, GORAKHPUR
MAIN ROAD POST OFFICE,
GORAKHPUR DISTRICT JABALPUR
(MADHYA PRADESH)
3. PARAMJEET SINGH S/O LATE AJEET
SINGH TALWAR R/O 620, GORAKHPUR
MAIN ROAD POST OFFICE,
2
GORAKHPUR DISTRICT JABALPUR
(MADHYA PRADESH)
4. REGISTER OF TRADE MARK, BAUDHIK
SAMPADA BHAWAN M.S. ROAD ANTOP
HILL, MUMBAI (MAHARASHTRA)
....RESPONDENT
(BY SHRI UMESH TRIPATHI - ADVOCATE FOR RESPONDENT NO.2)
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Reserved on : 31/05/2024
Pronounced on : 06/06/2024
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This appeal having been heard and reserved for judgment/order,
coming on for pronouncement this day, this Court passed the following:
ORDER
The present appeal under Order 43 Rule 1 (r) of C.P.C. has been filed challenging the temporary injunction order dated 10.08.2023 passed by the XVIth District Judge, Jabalpur in RCS A/475/2023 whereby the learned trial Court has granted temporary injunction under Order 39 Rule 1 & 2 read with Section 151 of C.P.C. in favour of present respondents No. 1 & 2. By way of said temporary injunction the present appellant and respondent No.3 have been restrained from using trade name 'Ichhadhari' in their product of Lassi.
2. Learned counsel for the appellant submits that the appellant - defendant No.1, plaintiff-respondent No.2 and defendant No.2 - respondent No.3 are real brothers. A business of Lassi was being carried out by deceased father of these three persons namely Shri Ajit Singh Talwar at Jabalpur. The trademan got Lassi and ancillary products being 3 used since the time of deceased father of these brothers was 'Ichhadhari'. After the death of their father, the business being carried out by the father was branched out between the three brothers and two brothers started undertaking seperate business under the same name 'Ichhadhari' which was being carried out since the time of their deceaed father. There is some dispute has to who is now doing the business of Lassi in the same premises in which the deceased father of these brothers was carring out business.
3. It is contended by learned counsel for the appellant that by suppressing these facts, the plaintiffs - present respondents No.1 & 2 submitted an application for registration of trade mark and the said trade mark was registered by the Registrar, Trade Marks. The trade mark has been registered in the name of New Ichhadhari Lassi, Purani Ichhadhari Lassi and Ichhadhari Lassi. After getting the trade mark registered by suppressing the relevant facts, the respondent No.1 field a suit against the present appellant and respondent No.3 in terms of Section 134 and 135 of Trade Marks Act, 1999 (hereinafter referred as the 'Act of 1999').
4. It is further submitted that the trail Court has granted injunction without considering the aspect that appellant has been doing the business of selling Lassi in the name of 'Ichhadhari' and this is the family name of Lassi being sold since the time of their deceased father and the plaintiff being one of the brothers has illegally got the trade mark registered in his name. It is further submitted that the trial Court without looking into that aspect has granted temporary injunction in favour of the present respondents No. 1 & 2 which is leading to loss to business of the present appellant. It is further contended that summer 4 season is the season for selling of Lassi and the injunction order is leading to damage of business of the present appellant.
5. Per Contra, it is submitted by learned counsel for the respondents No. 1 & 2 - plaintiff that the plaintiffs have got the trade mark registered from the Registrar of trade mark. The remedy against the registration of trade mark lies under Section 91 of the Trade Marks Act, 1999 by filing appeal against the decision of Registrar. It is contended that in the present case no appeal has been filed in terms of Section 91 of the Act of 1999. Thus, the trade mark issued to the plaintiffs is duly enforceable and despite trade mark being registered in the favour of plaintiffs, the defendants No. 1 & 2 i.e. the present appellant and respondent No.3 were using the same trade mark for selling the Lassi. Due to this the business of the plaintiffs was being affected adversely despite their beinga registered trade mark in their their favour. Thus, the plaintiffs - present respondents No. 1 & 2 duly filed the civil suit and sought temporary injunction therein. The trial Court has not erred in granting said temporary injunction because there is a registered trade mark in favour of the plaintiffs.
6. Upon hearing learned counsel for the parties and on perusal of the record, it is seen that the parties are not disputing to the fact that there is a registered trade mark in favour of the plaintiffs. It is also not in dispute that the said trade mark has not been cancelled or set aside or varied in any manner by any authority under the Act of 1999. The plaintiffs are holder of valid trade mark and under these backdrop of facts, the suit was filed. The present appellant does not dispute the fact that he is also carrying out the business of selling Lassi in the name of 'Ichhadhari'.
57. The documents placed on record show that though no appeal in terms of Section 91 of the Act of 1999 has been filed against registration of trade mark in favour of the plaintiffs, but the appellant has filed an application under Section 57 of the Act of 1999 which is an application to cancel or vary registration and to rectify the register.
8. On a query being put by this Court, learned counsel for the appellant fairly submits that there no information available with him that the said application is still pending. Thus, the facts placed on record duly show that the plaintiffs are holder of registered trade mark. An application for rectification is pending in terms of Section 57 of the Act of 1999 which has been filed by present appellant-defendant but no final orders on the said application till date has been passed.
9. In view of the aforesaid, no error can be found in the impugned order dated 10.08.2023 whereby temporary injunction has been granted in favour of the plaintiffs - present respondents No. 1 & 2. The appeal being devoid of merits stands dismissed. Liberty is however reserved to the appellant to file application under Order 39 Rule 1(4) C.P.C after disposal of their pending application under Section 57 of the Trade Marks Act, 1999. It is further made clear that this Court has not expressed any opinion so as to effect the final adjudication of the case. Nothing observed in his order will come in way either of the parties are the time of adjudication of suit.
10. With the aforesaid, the appeal is dismissed.
(VIVEK JAIN) JUDGE nks Digitally signed by RAJESH KUMAR JYOTISHI Date: 2024.06.07 13:44:52 +05'30'