- (1.) Challenge in this appeal is to the order dated 11.04.2014 passed by the Additional District Judge, Hisar, whereby the application under Order 39 Rules 1 and 2 read with Section 151 CPC filed by the appellant praying for interim injunction restraining the defendant from passing their goods under the trade mark 'Do Gay Chhap' and "Do Gay Chhap (KACOM Device of Cow)" either directly or through its servants, agents and dealers and from manufacturing, selling, offering for sale or otherwise directly or indirectly in the name and style of the applicant bearing trade mark 'Do Gay Chhap'.
(2.) It is the contention of the learned counsel for the appellant that the order denying the interim injunction to the appellant is without any justification and is contrary to the facts. He contends that the basic principle of law regarding grant of temporary injunction particularly when the trade marks are held to be almost similar and the goods are also the same has been overlooked. The documents, which have been produced on record by the appellant i.e. the invoices mention the trade mark 'Do Gay Chhap' and the cash memos for the period 1984-1997 have print of Two Cows depicted in the monogram, which is in use whereas, the respondent, admittedly, had started using the monogram since the year 1987 and, therefore, the appellant has been able to prima facie establish itself to be the prior adopter and user of the given trade mark. He submits that mere presence of the mark on the register does not prove its user unless it is actually used. As a matter of fact, the Court below has failed to appreciate that the user claimed is different from the user proved especially when the user had to be proved by the respondent. The respondent has not produced any document on record proving the use of the trade mark by it. As per the findings returned by the Court below, it is an admitted case that the appellant and the respondent are in the same trade and the labels are similar andappellant is prior in business, therefore, the presumption is that respondent must have copied the label of the appellant otherwise, there could not be any similarity than by imitation or copying. As the appellant has been able to prove a prima facie case in its favour, the interim injunction, as prayed for, should have been granted and the Court has failed to appreciate that irreparable harm and injury would be caused to the appellant if the respondent was not restrained from using the impugned trade mark during the pendency of the suit. Not only that the impugned order would prejudice the consumers and customers on the large scale as the confusion and deception would be inevitable because of similarity of trade mark and goods. He, thus, contends that the impugned order be set aside and the application preferred by the appellant be allowed by granting interim injunction restraining the respondent, as prayed for.
(3.) On the other hand, counsel for the respondent submits that a well-reasoned and detailed order has been passed by the Court below where each and every aspect has been dealt with including the documents. The cash memos, as have been produced by the respondent from the year 1973- 1984, depict handwritten 'Two Cows' mentioned in Column No. 2 but the cash memos with effect from the year 1984-1997 are issued by M/s Madan Lal Hans Raj where the Two Cows were depicted and these too are different from the monogram which is now being disputed. He contends that the appellant was initially running the firm in the name of M/s Madan Lal Hans Raj and its purpose was for selling food grain articles as wholeseller as well as retailer and commission agent. M/s Keshav Oil and Cotton Ginning Industries firm came into existence w.e.f. 15.12.1997 and the license was given for one year and the certificate was issued by the District Marketing Enforcement Officer, Hisar in this regard. The trade mark of Two Cows was not their at that stage as well. No proof has been shown that it had been running the business of manufacturing, processing, marketing and selling cattle seeds, oil cakes, seeds etc. since the year 1973 as claimed rather it entered into this business in the year 1997. He contends that the appellant filed the application in the year 2013 whereby the formalities for registration of the trade mark of Two Cows was initiated. He, thus, contends that the assertion of the counsel for the appellant that the appellant had been using this trade mark much prior to the respondent, who admittedly started business with effect from 1987 and got the monogram of Two Cows and the trade mark registered on 18.11.2009 and the proof thereof has also been produced that the said trade mark is being used since the said year, cannot be accepted. He, thus, contends that the finding, as recorded by the Courts below in the impugned order is fully justified and in accordance with law.;