Madan B. Lokur, ACJ. - (1.) BOTH the parties before us are bona fide concurrent users of the same trade mark "Star Bazaar" with the Appellant being the prior user. The Respondent has agreed to use "A Tata Enterprise" in conjunction with "Star Bazaar" so that the customers of the Appellant are not misled. The question before us is whether, notwithstanding this, the Appellant is entitled to an injunction restraining the Respondent from using the trade mark "Star Bazaar". In our opinion, this question must be answered in the negative.
(2.) THE Appellant is aggrieved by an order dated 22nd October, 2009 passed by a learned Single Judge in IA No. 13278/2008 (under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure) and IA No. 3465/2009 (under Order XXXIX Rule 4 of the Code of Civil Procedure) in CS (OS) No. 2296/2008. By the impugned order, the learned Single Judge declined to confirm the ex parte injunction granted in favour of the Appellant. The Appellant was incorporated on or about 12th March, 2003 and commenced business soon thereafter in Kailash Colony Market, New Delhi by opening a retail departmental store under the name and style of "Star Bazaar". According to the Appellant, it has only one such departmental store, which is located in South Delhi and at no other place in the country.
(3.) THE Appellant says that it has acquired considerable goodwill on account of its sales, marketing policy, efficiency etc. It has also had huge sales over the last few years.;