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2017 DIGILAW 245 (RAJ)

ANKUR OIL INDUSTRIES v. PUSHKARLAL AGRAWAL

2017-01-19

ARUN BHANSALI

body2017
ORDER : Arun Bhansali, J. Heard learned counsel for the parties on admission. 2. It is submitted by learned counsel for the appellant that the trial court committed an error in coming to the conclusion that the plaintiff was a prior user of the Trade Mark and has wrongly determined the implication of the examination report and the reply filed by the plaintiff to the examination report, which clearly indicates that the Trade Marks of the appellant were responded to by the plaintiff by indicating that the mark cited in the search report is different from distinctive Trade Mark applied by the plaintiff in all respects. 3. Further submissions were made with respect to provisions of Sections 30(3), 34 and 28(3) of the Trade Marks Act, 1999 ('the Act of 1999') to submit that the trial court was not justified in granting injunction. 4. Reliance was placed on Parle Products (P) Ltd. v. J.P. & Co. Mysore : (1972) 1 SCC 618 , Registrar of Trade Marks v. Ashok Chandra Rakshit Ltd. : AIR 1955 SC 558 , and M/s Radhakisan Naraindas v. Trilokchand & Ors. : AIR 1959 Madhya Pradesh 21. 5. Learned counsel for the respondent submitted that the trial court has recorded a categorical finding regarding prior user. Further submissions were made that in the trade mark registered in favour of the appellant, there is geographical restriction indicated therein i.e. the same has been registered "for sale in State of Gujarat & Maharashtra" and subsequent Trade Marks have been associated with the said restriction and, therefore, the submissions made by the appellant based on search report and the reply to the examination report are of no consequence. 6. Further submissions were made that the use of word 'Ankur' for sale of edible oil by the appellant is identical to the plaintiff's registered Trade Mark and, therefore, the trial court was justified in granting injunction against the appellant. 7. Reliance was placed on Heinz Italia & Anr. v. Dabur India Ltd. : (2007) 6 SCC 1 , Dhariwal Industries Ltd. & Anr. v. M/s M.S.S. Food Products : AIR 2005 SC 1999 , Navyug Commercial v. Maheshwari Tea Company Pvt. Ltd. : 2014 (1) WLC 219 and International Dog Bazar v. International Dog World : AIR 2016 (Rajasthan) 81. 8. In view of the submissions made by learned counsel for the parties, the matter requires consideration. 9. Admit. v. M/s M.S.S. Food Products : AIR 2005 SC 1999 , Navyug Commercial v. Maheshwari Tea Company Pvt. Ltd. : 2014 (1) WLC 219 and International Dog Bazar v. International Dog World : AIR 2016 (Rajasthan) 81. 8. In view of the submissions made by learned counsel for the parties, the matter requires consideration. 9. Admit. Issue notice. 10. Mr. G.D. Bansal has already put in appearance on behalf of the sole respondent, hence no need to issue fresh notice. 11. Heard learned counsel for the parties on stay application. 12. The trial court, after considering the material available on record, has recorded a prima facie finding that qua State of Rajasthan the plaintiff is the registered proprietor of the Trade Mark 'Ankur'; the appellant's registration is confined to Gujarat and Maharashtra and prima facie at least qua the State of Rajasthan the plaintiff is the prior user of the Trade Mark and in view of the fact that the identical Trade Mark 'Ankur' is sought to be used by the appellant, which is having phonetic similarity for identical products and likelihood of the buyers getting confused on account of such similarity, no case for grant of interim order in the present appeal so as to stay the interim injunction granted by the trial court, is made out. 13. The stay application filed by the appellant is, therefore, dismissed. 14. It is made clear that any observation made hereinbefore shall not affect the final outcome of the present appeal. 15. Looking to the nature of dispute involved, list the appeal for hearing on 25th March, 2017.