VEERENDR SINGH SIRADHANA,J. - (1.) The instant appeal projects a challenge to the order dated 11th February, 2013, made by the trial Court, declining the application for grant of Temporary Injunction under Order 39 Rule and 2 CPC as well as order dated 17th July, 2013, declining the review application instituted for review of the order dated 11th February, 2013.
(2.) Shorn off unnecessary details, the essential skeletal material facts necessary for appreciation of the controversy are that the plaintiff-appellant instituted suit proceedings for permanent injunction against the defendant-non-appellant for the non-appellant infringed the exclusive use of trade mark "KABIRA". It is pleaded case of the plaintiff-appellant that the appellant-Company is registered under the Companies Act, 1956. The company is into the business of manufacture and sale of large variety of edible oils for human consumption under the trade mark "KABIRA". The appellant-Company also obtained a certificate of authorization to use of agmark from the Department of Agricultural and Cooperative, Government of India. The trade mark "KABIRA" acquired a high degree of distinctiveness on account of its long and extensive use in the market throughout the country. Thus, the plaintiff-Company, with reference to the trade mark, has acquired vast, enviable and enduring reputation as well as goodwill.
(3.) Learned counsel for the appellant, reiterating the facts and grounds of the memo of appeal asserted that on or about 11th September, 2012, the appellant-company learnt that the defendant-non-appellant was marketing edible oil under its trade mark, which phonetically sounded identical for the letter "i" was substituted by "ee", in the trade name "KABIRA" with a fraudulent and malafide intention to take advantage of invaluable reputation and goodwill of the appellant-Company and has resulted into dishonest and illegal gains. The non-appellant made the gain by misleading the traders, customers and the general public. It is further contended that the trade mark "KABIRA" is being used as trade mark by the appellant-Company since year 1999 and was continuously in use up to 23rd September, 2008. The appellant, placed on record several documents before the trial Court in support of user of the trade mark "KABIRA". The trial Court while declining the review application instituting for review of the order dated 11th February, 2013, did take note of the fact that the documents as to use of the trade mark "KABIRA", were produced and placed on record with reference to year 1999, but those documents by mistake were enclosed with the main file of the suit proceedings and were not including in the application under Order 39, Rule 1 and 2 CPC, and therefore, could not be considered. The fact that the documents are also on record with reference to the use of the trade mark with effect from 12th April, 2010 and onwards, is also not in dispute.;