- (1.) The appellant is the user of the mark "Austin" in its manufacturing and business of plywood and other related products. The appellant would claim, they were having registration under class 19 as would appear from the certificate under the Trade Mark Act, appearing at page 93-95. From the certificate it appears they are having registration under class 19. The respondent initially applied for the identical mark for plywood and other related products including furniture that was classified in class 20. The respondent got the registration in class 20 that did not include plywood. There was spate of litigation between the parties for a substantial period that we would be discussing little later. The respondents would contend, they made the application for the mark "Austin" in class 19 that would include plywood, on July 16, 2003. There was appropriate advertisement and ultimately the Authority granted certificate in furniture being class 20 on December 30, 2005. The appellant applied for the identical mark in respect of plywood on November 1, 2006 and got registration accordingly.
(2.) In 2008 respondent filed a suit against the appellant in the district Court at Jaipur, inter alia, praying for order of injunction restraining the appellant from using the mark "Austin", however, they were unsuccessful, both before the learned District Judge as well as in the High Court. However, they would contend, the appeal before High Court is still pending. The appellant filed a suit in the City Civil Court at Calcutta in June 2010, inter alia, praying for the similar relief against the respondent. The learned Judge refused to pass ex-parte order, the Division Bench also declined to pass any interim order, however, asked the defendant to keep accounts. The appellant did not proceed with the suit any further and withdrew the same with liberty to move afresh.
(3.) The appellant subsequently filed a suit in this Court alleging infringement of their mark. The appellant initially filed the suit against infringement of mark; however, the later suit was for passing off action. The learned Single Judge declined to pass an interim order. Being aggrieved, the appellant filed the instant appeal RIVAL CONTENTIONS;