ALOK SHARMA, J. - (1.) THIS civil misc. appeal impugns the order dated 07.01.2014, passed by the learned District Judge, Jhunjhunu whereunder the plaintiff -appellant's (hereinafter 'the plaintiff') application under Order 39 Rule 1 and 2 CPC, seeking temporary injunction against the defendant -respondent (hereinafter 'the defendant') from using the word ''MAHANSAR '' in its trademark ''Mahansar D.J. Special '' has been dismissed.
(2.) THE plaintiff is the registered trademark holder for manufacturing and sale of wine under trademarks ''MAHARAJA MAHANSAR '' and ''MAHARANI MAHANSAR '' under registration Nos.1376212 and 1234856 since 2003. It is the plaintiff's case that the defendant subsequently commenced business in November, 2013 in the manufacture and sale of wine under a trademark ''Mahansar D.J. Special '' which was allegedly deceptively similar to that of the plaintiff's trademarks and tantamounted to an infringement under Section 29 of the Trade Marks Act, 1999 (hereinafter 'the Act of 1999') or in any event passing off the defendant's goods as that of the plaintiff entailing financial loss as also reputation and goodwill for the plaintiff and corresponding business and financial gain for the defendant. It was stated that the word ''MAHANSAR '' per se as a part of his trademark ''MAHARANI MAHANSAR '' and ''MAHARAJA MAHANSAR '' constituted its essential feature and the use of the said word by the defendant in its trademark was wholly illegal and in contravention of the Act of 1999 as infringement / passing off. In its reply of denial to the application under Order 39 Rule 1 and 2 CPC, the defendant submitted that the trademark of the plaintiff and that of the defendant neither similar or deceptively similar in any essential feature or copying of any distinctiveness and the two were in fact entirely different in getup, colour, font and label design. It was submitted that the mere incidental commonality of the word ''MAHANSAR '' that too in different style was of no effect for the reason that ''MAHANSAR '' per se was generic word being a village name which the plaintiff could not appropriate on account of it being a part of his registered trademark as a whole. Stating that even otherwise the mode and manner of use of the said word by the defendant in its trademark was completely different from the mode in which the said word was used in the plaintiff's registered trademarks, it was prayed that the application be dismissed.
(3.) CONSIDERING the rival claims, the learned court below, after a visual of the two trademarks in question and consideration of the respective merits of the cases of the contesting parties, vide its impugned order dated 07.01.2014 dismissed the application for temporary injunction. It was held that prima facie the defendant's trademark could not be said to be similar or deceptively similar with that of the plaintiff's trademarks or so designed to cause confusion within the minds of the consuming public as to make out a prima facie case of passing off. Hence this civil misc. appeal.;