Full Text
HIGH COURT OF DELHI
Date of Decision: 29.01.2020
M/S LAXMI AGRO IMPEX INDIA ..... APPELLANT
Through: Mr.Anil Sapra, Sr. Adv. with Mr.Satish Kumar, Adv., Mr.Umesh Mishra, Adv., Mr.Vishal Patel, Adv. & Ms.Akanksha Chaudhary, Adv.
Through: Mr.Shailen Bhatia, Adv. with Ms.Ekta Nayar Saini, Adv., Ms.Prem Lata, Adv., Ms.Monika Gupta, Adv., Mr.Sheril Bhatia, Adv.
& Mr.Vishal Nagpal, Adv.
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT
1. This appeal has been preferred by the original plaintiff in C.S.(Comm.) No.86/2019 (Appellant herein) wherein an application being I.A.No.2317/2019 was preferred under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 by the original plaintiff for getting ex parte ad interim stay and the same was granted vide order dated 14th February, 2019. For vacating the same, an application, being I.A.No.4741/2019, was moved by the original defendant 2020:DHC:635-DB (respondent herein) under Order 39 Rule 4 CPC. This application was also allowed and the learned Single Judge vide order dated 8th November, 2019 modified the ex parte ad interim relief granted vide order dated 14th February, 2019 and permitted the defendant to use a proposed trade mark for which an application for registration of trade mark was preferred by the defendant.
2. Being aggrieved and feeling dissatisfied by an order passed by the learned Single Judge dated 8th November, 2019 in I.A. No.4741/2019, the original plaintiff has preferred the present appeal.
3. The suit C.S.(Comm.) No.86/2019 was preferred by this appellant for permanent injunction, infringement and passing off trademark, copyright, unfair competition, rendition of accounts, dilution, delivery up, damages etc.
4. The appellant‟s (Original Plaintiff) trademark LADLI/SABKI LADLI was for the goods i.e. rice and pulses etc.
5. Interlocutory Application No.2317/2019 was preferred by the appellant under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) wherein ex parte ad interim relief was granted by the learned Single Judge vide order dated 14.02.2019 (Page No.340).
6. Notice was served and written statement was filed by the respondent in CS (Comm.) No.86/2019. Thereafter, an application i.e. I.A. No.4741/2019 under Order 39 Rule 4 CPC was preferred by the respondent for vacating the ex parte stay granted to the original plaintiff vide order dated 14.02.2019 passed in I.A. No.2317/2019.
7. After hearing the application under Order 39 Rule 4 CPC, learned Single Judge vide order dated 08.11.2019 modified the ex parte ad interim relief granted vide order dated 14.02.2019 by permitting the respondent to use the proposed trademark which was now registered vide registration dated 18th March, 2019 (at Page No.46 of the Paper Book).
8. Being aggrieved and feeling dissatisfied by the order of the learned Single Judge, dated 08.11.2019 (Annexure „A‟), the present appeal has been preferred by the appellant (Original Plaintiff).
9. Thereafter, CM No.51071/2019 in FAO(OS) (Comm) 341/2019 was preferred by this appellant wherein this Court vide order dated 27.11.2019 granted stay against the order dated 08.11.2019 of learned Single Judge.
10. We have heard counsel for both the sides and looking to the facts and circumstances of the case, it appears that the manner of use/presentation are of the trademark by the original plaintiff and defendant are as under:-
11. Much has been argued by the learned Senior Counsel for the appellant about the fact that the appellant adopted the trademark “LADLI” / “SABKI LADLI” on 01.04.2006 and has been using it since then. Leaned Senior Counsel further submitted that trademark “SABKI LADLI” was applied by the appellants on 24.12.2009 and the same was granted on 31.08.2016. Similarly, original plaintiff also applied for the trademark “LADLI” on 05.01.2010 which is pending with the competent authority.
12. Original defendant is also claiming use of the trademark “LADLI” since 01.04.1993 through their predecessor. Original defendant applied for registration of trademark “LADLI” on 05.01.2010 and the same was granted on 18.03.2019.
13. The registered trademark of the defendant is as under:-
14. The aforesaid aspects of the matter have been properly appreciated by the learned Single Judge while passing the impugned order dated 08.11.2019 in IA No.4741/2019.
15. It appears that vide order dated 08.11.2019 passed in IA No.4741/2019 in CS(Comm) No.86/2019, the learned Single Judge allowed the respondent (Original Defendant) to use the proposed trademark and modified the ex parte ad interim relief granted earlier to the appellant (Original Plaintiff) to the extent that the respondent (Original Defendant) shall be entitled to use the proposed trade mark which was eventually registered on 18.03.2019 in favour of original defendant.
16. Much has been argued by the learned senior counsel for the appellant about the Deed of Assignment, about prior use and about the comparison of trademarks as stated in the plaint. At this stage, we see no reason to entertain all these arguments, otherwise, the original suit would be prejudiced if any observation is made in this appeal.
17. Learned Single Judge has neither given any findings on the comparison of the trademarks which are mentioned in paragraph No.7 of the impugned order nor on the Deed of Assignment which was drawn in favour of the respondent. These issues have been kept open.
18. Looking to the facts of the case, no error has been committed by the learned Single Judge while passing the order dated 08.11.2019 in IA No.4741/2019 in CS(Comm) No. 86/2019 whereby the respondent (Original Defendant) was permitted to use the proposed trademark which was eventually registered in favour of the original defendant on 18th March, 2019. Hence, we see no reason to interfere with the order of the learned Single Judge dated 08.11.2019.
19. Accordingly, this appeal is hereby dismissed, consequently, stay granted earlier by this Court vide order dated 27.11.2019 in CM No.51071/2019 stands vacated.
CHIEF JUSTICE C.HARI SHANKAR, J JANUARY 29, 2020