- (1.) The Court : By consent of the parties the appeal and the application are taken up together for consideration.
(2.) This appeal is arising out of an order of refusal of ad interim order of injunction in an action for infringement and passing off. The undisputed facts that emerge at this stage are that the plaintiff as well as the defendant were partners of a partnership firm 'Ganpati Enterprise' till 28th February, 2013 when Mr. Sanjay Gupta, one of the partners of the said partnership firm had executed a deed of retirement and had relinquished his all claims relating to the said partnership firm and assets in favour of Rajesh Kumar Agarwal, the continuing partner, as the sole proprietor of the said business. Mr. Rajesh Kumar Agarwal, on the basis of the said deed of retirement, continued to become the sole proprietor of 'M/s. Ganpati Enterprises'. It appears that before the execution of the deed of retirement, the respondent made a claim that the respondent was carrying on an independent business similar in nature under the name and style of 'Ganpati Sanjay' and 'Om Ganpati Caterers' to the knowledge of the appellant. The respondent also appeared to have applied for registration of a device mark 'Ganpati Sanjay' on 19th December, 2017 with the user details as 'proposed to be used'. The said application, however, was rejected on the basis of the objection raised by the Registry.
(3.) Mr. Ratnanko Banerji, learned Senior Counsel appearing on behalf of the respondent is unable to indicate the reason for such rejection. It apparently appears that 'Ganpati' was a registered trademark in respect of both word and label in favor of the original partnership firm and by reason of the said deed of retirement, continued to be the asset of the appellant. However, at the trial Court if it is established that with the knowledge and consent of Rajesh, Sanjay had carried on similar business and was allowed to continue such business, it would have a different implication in law.;