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2021 DIGILAW 643 (RAJ)

Mohanlal Kumawat v. Dhanraj Meghwal

2021-03-18

GOVERDHAN BARDHAR

body2021
JUDGMENT : Goverdhan Bardhar, J. 1. Challenge in the present first appeal filed by the appellant/plaintiff under Section 96 read with order 41 of the Code of Civil Procedure has been made to the judgment dated 25.3.2019 passed by the Court of Additional District Judge No. 1, Bundi (Rajasthan) in Civil Suit No. 53/2018 (Mr. Mohan Lal Kumawat vs. Dhanraj Meghwal) whereby the application filed by the respondent/defendant under Order 7 Rule 11 CPC has been allowed and the suit filed by the appellant/plaintiff has been dismissed. 2. Brief facts of the case are that the appellant/plaintiff filed a civil suit against the respondent/defendant under Secs. 27(2)(c) of the Trade Marks Act, 1999 read with Section 20 of the Code of Civil Procedure, 1908 for "passing off action" of prior user trademark "Raj Radios" before the Court below. Pending civil suit, respondent/defendant filed an application under Order 7 Rule 11 CPC praying therein to allow the aforesaid application and dismiss the civil suit filed by the appellant/plaintiff. The Court of Additional District Judge No. 1, Bundi (Rajasthan) vide its judgment dated 25.3.2019 allowed the application under Order 7 Rule 11 CPC filed by the respondent/defendant and dismissed the civil suit filed by the appellant/plaintiff. Aggrieved and dissatisfied with the judgment dated 25.3.2019, passed by the Court below, the appellant/plaintiff preferred instant appeal before this Court. 3. Learned counsel for the appellant/plaintiff submitted that the Court below has passed the impugned judgment ignoring the principle of law relevant under Order 7 Rule 11 CPC. Impugned judgment passed by the Court below is contrary to the settled principles of law laid down by the Hon'ble Apex Court, contrary to the provisions of the Trade Marks Act, 1999 as also the provisions contained under Order 7 Rule 11 CPC. The Court below failed to appreciate the principle of "passing off action", the said principle is based on the 'theory of prior user of the disputed trade mark, between the concerned parties, who appeared before the Court. The Court below failed to appreciate the established law that "no one can be permitted to trade by deceiving or misleading the purchasers or to unauthorized divert to itself the reputation and goodwill of others". Under Sec. 27(2) and action for passing off against registered user of trade mark is maintainable at the instance of a prior user of the same, similar or identical mark. Under Sec. 27(2) and action for passing off against registered user of trade mark is maintainable at the instance of a prior user of the same, similar or identical mark. Since such a remedy is available against the registered user of a trade mark. While passing the impugned order the Court below completely failed to consider the averments made by the appellant/plaintiff in plaint that the appellant/plaintiff is the prior adopter and user of the trademark. The findings of the order impugned are absolutely perverse and based on none reading and misreading of the pleadings and judgments which were relied by the appellant/plaintiff to support his case. The impugned judgment suffers from vice of error apparent on face of it. The Court below further erred in holding that the trademark of the appellant/plaintiff is unregistered one and therefore, the appellant/plaintiff has no right, locus or remedy to file a suit for passing off action against the registered owner of the trademark. The Court below failed to consider that for deciding an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908, the averments made in the plaint are required to be considered. The Court below has not dealt with the application under Order 7 Rule 11 CPC in its true and proper prospective and passed the impugned order on the basis of surmises and conjectures. 4. On the contrary, learned counsel appearing for the respondent/defendant supported the impugned judgment passed by the Court below and submitted that learned Court below after hearing and meticulously gone through the entire material made available to the Court, allowed the application filed by the respondent/defendant under Order 7 Rule 11 CPC and dismissed the civil suit filed by the appellant/plaintiff. 5. Heard learned counsel for the parties, perused the impugned judgment passed by the Court below and meticulously scanned & scrutinized the entire material made available to the Court. 6. In the instant case, the suit was filed by the plaintiff under Sections 27(2), 134(1) (c) of the Trade Marks Act, 1999 read with Section 20 of Code of Civil Procedure, 1908 for "Passing off action" of prior user trade mark "Raj Radios" of the plaintiff. 6. In the instant case, the suit was filed by the plaintiff under Sections 27(2), 134(1) (c) of the Trade Marks Act, 1999 read with Section 20 of Code of Civil Procedure, 1908 for "Passing off action" of prior user trade mark "Raj Radios" of the plaintiff. The defendant is also engaged in the similar business activities of manufacturing, marketing and selling FM Radios, Radios and Tape Recorders under the identically, phonetically, structurally and ditto to ditto similar trade mark "Raj Radio" and that too, admittedly, subsequent to the plaintiff's user and thereby passing off his goods and services as that of the plaintiff's. In the prayer clause, inter alia, it was prayed that the defendant, their successors, servants, agents, dealers, stockist and distributors be restrained permanently and perpetually from manufacturing, marketing, advertising and selling and/or offering for sale their products under the Trade mark Raj Radio and such other trade mark having identical and/or deceptively similar to the plaintiff's trade mark Raj Radios and be further restrained from committing act of passing - off goods by selling products and providing services under the Trade mark Raj Radio as that of the plaintiff's Trade mark Raj Radios and be restrained to claim any rights, titles or interests in the Trade mark Raj Radio. The defendant be permanently and perpetually restrained from committing an act of passing off goods by selling his goods/products as the goods/products of the plaintiff under the alleged Trade mark. 7. The defendant be permanently and perpetually restrained from committing an act of passing off goods by selling his goods/products as the goods/products of the plaintiff under the alleged Trade mark. 7. The trial Court while allowing the application under Order 7 Rule 11 CPC recorded its finding as under: i=koyh ij miyC/k QksVksxzkQ esa ;g Hkh nf’kZr gksrk fd oknh }kjk vius bysDVªksfud mRiknksa ij jkt jkfMl ds lkFk viuk uke jkt dqekor Hkh vafdr fd;k gqvk gS blls ;g Árhr gksrk gS fd oknh vius mRiknksa jkt jkfMl ftlds lkFk jkt dqekor uke Hkh vafdr gS] dk viath—r VªsM ekdZ ds uke ls mYys[k djrs gq, O;kikj dj jgk gSA oknh }kjk jkt jkfMl ds uke ls dksbZ O;kikj ugha fd;k tk jgk gS bl vk/kkj ij oknh /kkjk 27¼2½ VªsM ekdZ vf/kfu;e] 1999 ds rgr ikflax vkWQ dh O;oLFkk dk ykHk ugha mBk ldrk gS blh dkj.k oknh dh vksj ls ÁLrqr U;k;n`"VkUr Hkh gLrxr ekeys ij pLik ugha gksrk gSA nwljh vksj Áfroknh jkt jkfMl VªsM ekdZ dk Loh—r jftLVMZ ekfyd gS vkSj og fof/k vuq:i gh vius jkt jkfMl VªsM ekdZ ds uke ij O;kikj dj jgk gSA miyC/k foospu ds vk/kkj ij ;g dgha Áekf.kr ugha gksrk gS fd oknh }kjk yEcs le; ls Á;ksx fd;s tk jgs viath—r VªsM ekdZ jkt jkfMl jkt dqekor dk Á;ksx Áfroknh }kjk jkt jkfMl ds :i esa fd;k tk jgk gks bl vk/kkj ij ;g U;k;ky; oknh dk /kkjk 27¼2½ VªsM ekdZ vf/kfu;e] 1999 ds Áko/kku ij ykHk mBkus dk vf/kdkjh ugha ikrk gS vkSj bl dkj.k oknh dks Áfroknh ds fo:) ÁLrqr okni= esa dksbZ Hkh okn dkj.k mRiUu ugha gksrk gS ftlds QyLo:i oknh dk okn fof/k vuqlkj pyus ;ksX; ugha gSA 8. It is pertinent to note that under Section 27 (2) of the Trade Mark Act, 1999 civil suit filed on the basis of 'passing off action' is maintainable and the unregistered proprietor of the trade mark can also seek relief even against the registered proprietor of the trade mark and for the purpose of deciding the application under Order 7 Rule 11 CPC, the averments made in the plaint for the purpose of cause of action to be considered and the Court cannot enter into disputed question of fact. The contents and pleadings disclosed that the cause of action for adjudication existing in the plaint. The contents and pleadings disclosed that the cause of action for adjudication existing in the plaint. The trial Court erred in rejecting the suit entering into disputed question of fact while deciding the application under Order 7 Rule 11 CPC. 9. In the result the first appeal filed by the appellant/plaintiff is partly allowed, the impugned judgment/order dated 25.3.2019 passed by the Court of Additional District Judge No. 1, Bundi (Rajasthan) is set aside and the trial Court is directed to restore the civil suit No. 53/2018 on its original number and decide the same on merits after framing the appropriate issue/preliminary issue in accordance with law. Learned counsel for the parties are directed to appear with their clients before the trial Court on 17.4.2021.