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24. Mr. Kamod would accordingly submit that all of the above form part of the Plaint and were very much placed before the Trial Court at the time of hearing and passing of the Impugned Order.

25. Mr. Kamod would strenuously urge that there are several irregularities, much less illegality which would vitiate the Impugned Order. The first being that the Trial Court has proceeded on an erroneous finding that the mark "GERMINATOR" is generic. It was never the Respondents/Defendants' case, as would be clear from their pleadings, that such mark was generic. It is difficult to fathom as to how the Trial Court 10 J-COMAO-28-2025 (C).doc reached such a conclusion, and the basis thereof is not known. There is no justification, much less reason, to arrive at such finding that the mark "GERMINATOR" is generic. Therefore, on such ground alone, the Impugned Order deserves to be set aside, as Mr. Kamod would urge.

71. Mr. Kanetkar would submit that in the light of aforesaid submissions, the Appeal is devoid of merits and therefore deserves to be dismissed. Analysis:

72. At the outset, we are constrained to observe that the Impugned Order begins with reasons that are not well founded, conflicting with the well settled legal parameters making it vulnerable, thereby warranting intervention of this Court. To illustrate, the Trial Court, inter alia in 13 MANU/DE/1028/2017 14 MANU/MH/1633/2014 15 (2006) 6 SCC 498 16 (2003) 9 SCC 606 Pallavi/ Shubham/ Mayur 28/51 29 J-COMAO-28-2025 (C).doc paragraph 7 of the said Judgment, observes that the word "GERMINATOR" is a 'generic' word. In this regard, it is pertinent to note that such finding is completely extraneous to the pleadings on record. The Respondents/Defendants nowhere in the written statement has taken such plea of the said mark being 'Generic'.

73. An objection was raised by Mr. Kanetkar that the Appellant/Plaintiff has not questioned the Impugned Order on its findings of the said mark being 'Generic'. However, the record bears out that the Appellant/Plaintiff has in the Appeal Memo dealt with the findings of the Trial Court in this regard, despite of it being the Court's independent findings, dehors the pleadings. At this juncture we may refer to decision of the Supreme Court in Trojan & Co. v. Nagappa Chettiar 17 where the Supreme Court held that it is well-settled that the decision in a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Thus, the Trial Court has erred in going beyond the pleadings and defense in the written statement to observe and hold that the mark "GERMINATOR" is generic, a finding in light of the said decision is not tenable. Moreover, the Respondents/Defendants are not correct in submitting that this aspect is not dealt with by the Appellant/Plaintiff in the Appeal Memo, as it finds mention in grounds [(h), (l) and (dd)] of the Appeal Memo.

83. In other words, the statutory provisions as noted above, under the Trade Mark Act provide for a categorical classification as envisaged under the Abercrombie Spectrum in the case of Abercrombie & Fitch Company v. Hunting World, Incorporated.22 The Trial Court ought to have been cautious in applying the expressions 'generic' and 'descriptive' to the mark "GERMINATOR". This, more particularly, when the concepts, connotations and legal implications flowing from these are distinct and different. We are, therefore, not able to accede to the submissions of Mr. Kanetkar that the Trial Court though referring to the mark being 'generic' actually meant that it is descriptive. This classification being fundamental in Trade Mark jurisprudence, such reasoning is not in sync with what the law stipulates and/or mandates.