At, High Court of Rajasthan
By, THE HONOURABLE MS. JUSTICE BELA M. TRIVEDI
For the Appellant: G.D. Bansal for Manu Bhargava, Advocates. For the Respondent: Amit Jindal for S.K.Bindal, Advocates.
The present appeal has been filed under Order 43 Rule 1(r) of Civil Procedure Code against the order dated 13.8.08 passed by the Addl. District Judge No. 4, Jaipur City, Jaipur (hereinafter referred to as' the trial court') in Civil Misc. Application No. 3/08, whereby the trial court has rejected the application of temporary injunction filed by the appellant-plaintiff.
2. As per the case of the appellant-plaintiff, the appellant was manufacturing and marketing the flour (Aata) under the trade mark "Shri Shakambari" since 28.2.05 and that his trade mark was well known, however the respondent-defendant was deceptively using the similar trade mark "Maa Shakambari" and was passing the goods as that of the appellant's goods. The appellant-plaintiff therefore, filed the suit against the respondent-defendant under Section 27(2) read with Section 134 of the Trade Mark Act, 1999 seeking damages and rendition of accounts and also for passing of action. The appellant also filed an application seeking temporary injunction restraining the respondent from using the trade mark "Maa Shakambari" of deceptively similar trade mark during the pendency of the suit. The trial court dismissed the said application vide the impugned order dated 13.8.08 against which the present appeal has been filed.
3. At the outset, it may be stated that though the impugned order is of dated 13.8.08, no attempt appears to have been made by the appellant to get the appeal heard for admission and the same has remained pending at the admission stage since last 4 years without any substantive hearing. The appellant having not been granted any injunction in its favour by the trial court and there is also no order passed by this court for any interim relief for about four years, , the present appeal deserves to be dismissed on that ground alone.
4. It was sought to be submitted by the learned counsel for the appellant that the appellant is using the trade mark "Shri Shakambari" since 28.2.05, whereas according to the learned counsel for the respondent, the trade "Maa Shakambari" was assigned to the respondent by one M/s. Nathu Lal Damodar Prasad vide the assignment deed dated 7.7.06 and that the said M/s. Nathu Lal Damodar Prasad was using the said trade mark since 1989 and therefore, the respondent was the lawful proprieter of the said trade mark Maa Shakambari since 1989.
5. Having regard to the submissions made by the learned counsels for the parties, it transpires that it is a matter of evidence to be led by both the parties as to who was the prior user of the trade marks in question and as to whether the assignment in favour of the respondent was genuine or not. The trial court therefore,
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has rightly dismissed the application of the appellant-plaintiff seeking temporary injunction. 6. There being no illegality or infirmity in the impugned order passed by the trial court, the present appeal deserves to be dismissed and is accordingly dismissed. Appeal dismissed.