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2. The appellants are the original defendants and respondent is the plaintiff before the trial Court. For the brevity and convenience, the parties are referred to in this order as per the character assigned to them before the trial Court.

3. The brief facts of the case is that the plaintiff has filed the Suit for declaration, Permanent and perpetual injunction for passing off action of Trade Mark against the defendants. Along with the plaint, the plaintiff has moved the application for interim injunction at Exh-6 and 7 before the trial Court. It is the case of the plaintiff that the plaintiff is a sole proprietorship concern engaged in the business of manufacturing, marketing and selling of Pepsi, Sharbat, juice and cold-drinks since long as household business i.e. very small scale since 1995-96 by adopting brand/ C/AO/152/2019 CAV JUDGMENT DATED: 22/12/2022 trademark SHEETAL. That thereafter in the year 2000, the plaintiff adopted and started two other brands/ trademarks RAJSHREE and MAYUR for the same business. According to the plaintiff, he is the true owner of the said Trademark SHEETAL, MAYUR and RAJSHREE and is using the same continuously, exclusively and uninterruptedly since then. 3.1 That the defendant No.1 is proprietorship of defendant No.3 and husband of defendant No.2 and defendant No.2 is also carrying on business of Pep cee with the trademark SHEETAL PEPCEE and MAYUR PEPSY, which is identical and deceptively similar to the plaintiff's trademark. That the defendant No.3 is the proprietor concern. 3.2 It is also the case of the plaintiff that the plaintiff is the first adopter and first user of the said trademarks since the year 1996. That on 7.3.2000, the plaintiff has applied for registration of Trademarks RAJSHREE, SHEETAL and MAYUR in Class 30 and 32 and the said application is pending. That the plaintiff has developed the said artwork of the device of girl with a candy in hand for the plaintiff C/AO/152/2019 CAV JUDGMENT DATED: 22/12/2022 products since its use. It is also contended that due to bonafide mistake and oversight, the user date was mentioned as 31.3.1998 for the trademark instead of 1996. It is also revealed that by virtue of prior honest adoption, long continuous and uninterrupted use of the Trademarks RAJSHREE, SHEETAL and MAYUR, it was identified and associated with plaintiff firm and is synonymous with the plaintiff's service and goods.

4.2 The defendants have admitted regarding its business as averred by the plaintiff. However, it has denied the allegation of plaintiff regarding the use of trademark C/AO/152/2019 CAV JUDGMENT DATED: 22/12/2022 SHEETAL PEPCEE and MAYUR PEPSY as identical and deceptively similar to the plaintiff's trademark. It has also denied that the plaintiff is a prior user of the said trademark and that the plaintiff is exclusive owner and proprietor of the trademark. It has denied that by adoption and use of such identical and / or deceptively similar trademark, the defendants are deliberately cheating the public at large by passing off their goods as that of the plaintiff. It has prayed to dismiss the application.

16. Considering the aforesaid proposition regarding passing off action and the submissions made on behalf of both the sides, coupled with the material placed on record, it transpires that there is no dispute as to the fact that plaintiff was using the trademark/ brand "SHEETAL" from 1995-96 and trade name 'RAJSHREE" and "MAYUR" since 2000. It also appears that the defendant was employee of the plaintiff. It also reveals from the copy of documents placed at Page-187-192 that C/AO/152/2019 CAV JUDGMENT DATED: 22/12/2022 there was a Contract of handing over the running business of PEPSI from plaintiff to defendant Maheshkumar. That entire business has been given to the defendant on rental basis and that paying good-will royalty. It also appears from documents placed at Page-194 to 197 that it s supplementary contract for the running of the business of PEPSI entered into between the parties. On both the documents there is signature of Maheshbhai Trivedi. Of course, it is contended by the defendant that it is not his signature. It is also contended by the defendant in respect of both these documents that the same bears the same serial number. However, on perusal of the Page-188, it bears Serial Number AB4 2 8929 whereas Supplementary Agreement at Page-192 bears Serial Number AB4 2 8928. At this juncture, it is also worthwhile to refer to the legal Notice dated 13.11.2014 issued by the defendant to the plaintiff which is at Page-198 and 199, wherein in Para-5, the defendant has admitted to execution of Contract as referred to hereinabove. It also reveals from the averments of this notice that the defendant has averred that he is using trademark "RAJSHREE" from 2011. It is also averred that the C/AO/152/2019 CAV JUDGMENT DATED: 22/12/2022 defendant has vacated the premises of the plaintiff and plaintiff has started his own business of Pepsicola, Sharbat, etc. It is also averred therein that the plaintiff is unauthorisedly using RAJSHREE trademark and has applied for its registration before the trademarks Registry. On perusal of the paper-book, it appears that the defendant has applied for registration of trademark RAJSHREE showing the date of user as 1.4.2011 and for SHEETAL PEPCEE as in user- detail column it is shown as "proposed to be used". It also reveals from that for "MAYUR PEPSY", the defendant has applied for registration and in user-detail Column, it is shown as " proposed to be used."

17. Now, considering the material placed on record, it clearly appears that defendant had contract with the plaintiff regarding the running of the Pepsi Cola business. Thus, it reveals from the material placed on record, that the plaintiff is a prior user of the trademark RAJSHREE, SHEETAL and MAYUR. The proposed trade names as the defendant wants to register as his trademark are concerned, the name RAJSHREE is the same whereas he C/AO/152/2019 CAV JUDGMENT DATED: 22/12/2022 has added PEP CEE to the word "SHEETAL" and " PEPSY" in the name "MAYUR". Thus, the name of words "PEP CEE" , "PEPSY" is added with brand "SHEETAL" and "MAYUR" is phonetically same as the goods Pepsi and Sharbat of the plaintiff. Therefore, there is likelihood of confusion created in the minds of the ordinary purchaser. Therefore, in view of the settled principles of law regarding granting of injunction, the plaintiff is entitled to get relief of injunction.