- (1.) LEAVE granted. The appeals have been preferred from the order1 of the Division Bench of the Madras High Court in proceedings initiated under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as "the Act").
(2.) BOTH the appellant and the respondent claimed that they have been carrying on the business of selling rice under a mark depicting "Maharaja" (borrowed from Air India) as well as the word "Maharaja". As far as the appellant is concerned, it is claimed that it started such business in the year 1980 and that it was an extensive business. An application for registration of the trade mark was made in July 1992 and provisional registration was granted on 4/8/1992. It is not in dispute that the respondent applied for registration of its trade mark on 15/9/1992. The respondent also claimed to have been carrying on the business of selling rice under the identical trade mark since 1980. According to the respondent, the turnover of such business was considerable. On 21/3/2001, the appellant filed a suit before the District Court at Erode, inter alia, claiming an injunction against the respondent from using the "Maharaja" brand. That suit has since been transferred to the High Court of Madras at Chennai. The respondent's suit was filed thereafter on 11/4/2001 in the High Court directly for the same reliefs against the appellant. On an application filed by the respondent for interim relief, the learned Single Judge opined that there was no clinching material to show that the respondent had been using the trade mark prior to that of the appellant. It was also noted that the appellant had filed material to show that it has been carrying on the business by utilising the same trade mark since 1980. The application for interim injunction was, accordingly, refused but it was made clear that the discussion and conclusion arrived at in the order was confined to the application for interim relief and would not prejudice either party's contention in the suits.
(3.) THIS judgment was impugned in appeal by the respondent. The court stated that there was no documentary evidence and that the issue would have to be determined on the basis of the affidavits filed. At the outset, we may note that it would be inappropriate to decide the issue on the basis of the affidavits alone in a case which relates to the utilisation of a trade mark. It has to be, at least prima facie, established in the application for interim relief that the applicant has been utilising the trade mark as claimed by it. However, on the basis of the affidavits, the Division Bench said: "We are of the view that the appellants (the respondent before us) have established that they are using the trade mark 'MAHARAJA' from earlier point of time than the respondents (the appellant before us) and as such they made out a prima facie case for grant of interim order." It also appears that the Division Bench has wrongly cast the onus on the appellant before us, for establishing its claim without considering the question as to whether the respondent had led any evidence whatsoever, to establish its claim on the basis of which the interim relief was granted. ;