- (1.) WITH the consent of the learned counsels for the parties, the appeal is decided finally at the admission stage.
(2.) THE present appeal arises out of the order dated 11.08.2010 passed by the Additional District and Sessions Judge No.4, Jaipur City, Jaipur (hereinafter referred to as "the trial court ") in Civil Misc. Application No.3/2009 in Suit No.1/2009, whereby the trial court has dismissed the application of the appellant -plaintiff seeking temporary injunction under Order XXXIX Rule 1 and 2 of CPC. The appellant -plaintiff has filed the suit, alleging interalia that the appellant company is incorporated under the provisions of Companies Act and is engaged in the business of manufacturing, trading and sale of agricultural products like H.D.P.E. pipes and sprinkler systems and other spare parts since 1998, for which the appellant was using the trademark 'Jindal'. According to the appellant, the said trademark was registered under the Trademark Act, 1999 (hereinafter referred to as "the said Act ") with the registration No.1191728, and therefore, the appellant had an excursive right to use the said trademark. It is further case of the appellant -plaintiff that the trademark certificate was issued under Section 28 of the said Act on 09.05.2006 and the said trademark had acquired good reputation for the business of the plaintiff through out the country. It is also case of the appellant that the respondent -defendant, who was also engaged in the same business as that of the appellant, was using the same trademark 'Jindal' for his products in the open market, and was trying to pass off their goods as that of the appellant and to harm the well established reputation of the appellant. Thus, the appellant -plaintiff has filed the suit on the ground of the infringement of its registered trademark and sought necessary reliefs in that regard. The appellant also filed an application under Order XXXIX Rule 1 and 2 of CPC seeking temporary injunction, against the respondent -defendant for restraining it from using the trademark 'Jindal' for its business, pending the suit. The said application was resisted by the respondent -defendant contending interalia that the respondent -defendant was using the trademark 'Jindal' prior in point of time than the appellant, and the appellant had wrongly got the trademark 'Jindal' registered in its favour under the said Act. According to the respondent -defendant, the appellant could not have filed the suit in view of Section 33 and 34 of the said Act as the respondent was continuously using the said trademark from the date prior to its use by the appellant. The trial court after hearing the learned counsels for the parties, dismissed the said application vide the impugned order against which the present appeal has been filed.
(3.) IT has been sought to be submitted by the learned counsel Mr. Prateek Kasliwal, for the appellant that the documents, namely copies of invoices produced by the respondent -defendant were forged documents inasmuch as the word 'Jindal' appearing in the invoices was subsequently written with the different ink and with different hand writings, only with a view to show that the respondent was using the said word 'Jindal' prior to the use of the appellant. He also submitted that the trademark of the appellant having been registered under the said Act, the appellant was entitled to the rights conferred under Section 28 of the said Act. According to Mr. Kasliwal, the trial court had mis -appreciated the documents on record and wrongly dismissed the temporary injunction application of the appellant. However, the learned counsel Mr. Mahendra Shandilya, for the respondent has vehemently submitted that the order of trial court being just and proper, this Court should not interfere with the same. According to him, the respondent -defendant had filed the invoices showing the prior use, and therefore, the defendant was entitled to the protection under Section 34 of the said Act. He also submitted that the respondent has already filed an application before the competent authority under the Act for rectification of the appellant's trademark, and as such the suit of the appellant -plaintiff was not maintainable in the eye of law.;