- (1.) Heard learned counsel for the parties.
(2.) The plaintiff -appellant has filed this civil misc. appeal under Order 43 Rule 1 (r) CPC against the order dated 26.3.2015 passed by the Additional District Judge No.9, Jaipur Metropolitan, Jaipur in Civil Misc. Case No.10/2015 whereby the learned trial Court has dismissed the application under Order 39 Rule 1 & 2 CPC filed by the appellant for grant of temporary injunction.
(3.) Brief relevant facts for the disposal of this appeal are that the appellant filed a civil suit against the defendant -respondent for rendition of accounts, damages and permanent injunction for infringement and passing off action of the registered trademark "Maheshwari" and artistic work/design of the packaging material with the averment that respondent has recently started using decepetively similar trademark "Maleshwari" with similar artistic work/design of the packaging material of the appellant. The appellant also filed an application for temporary injunction. It is the case of the appellant that it is a private limited company which was incorporated in the year 1997 and prior to it the Directors/Promoters of the Company were carrying on business of Tea since 1961 under the name and style of M/s Maheswari Tea Company and the trademark "Maheshwari" was adopted in the year 1961. It was further averred that the appellant -company has created, invented and developed a specific artistic design of the packaging material/label of the tea with specific placement of the words combination of the colours and the said artistic work/design has inherently distinctive character from other tea manufacturers/traders. It was claimed that the appellant -company has all legal rights to use exclusively this artistic work/design under the Trademark Act, 1999. It was further averred that the appellant - company got registration of the trademark "Maheshwari" alongwith the said artistic work/design of the packaging material under registration No.1201204 dated 26.5.2003 which has now been renewed and is valid upto 26.5.2023. It was also averred that the defendant -respondent having fully aware about the existence of the appellant's registered trademark "Maheshwari" and specific artistic work/design of the packaging material intentionally and malafidely adopted deceptive similar trademark "Maleshwari' and even respondent adopted identical artistic work/design with prominently displayed feature upon the packaging material in respect of trading of tea. It was averred that due to adoption of deceptively similar trademark "Maleshwari" and its artistic work/design, deception and confusion has arisen among the customers, traders and other related persons of the trade. In the application for grant of temporary injunction, it was prayed by the appellant that the defendant -respondent may be restrained to use trademark "Maheshwari" and its artistic work/design which is almost deceptively similar to trade work and artistic work and design of the appellant -company. In its reply to the application for temporary injunction, defendant -respondent averred that the appellant's trademark has been registered as a device mark and the Registrar of trademark has also imposed condition/limitation/disclaimer against the registration of the appellant's trademark and registration of this trademark in favour of appellant does not give right to exclusive use of descriptive matters appearing on the label. It was further averred that design and artistic work adopted by the appellant is very much common and it is used by a number of persons in the market in respect of trading of tea and, therefore, the appellant has no legal right to use exclusively the said design and artistic work. It was further averred that the respondent adopted trademark 'Maleshwari' in February 2014 in the name of his grandmother Late Smt. Maleshwari Devi and he has also applied for registration of the said trademark on 24.7.2014. Alongwith the reply, respondent also produced a comparitive chart to show differences between two trademarks and artistic work of the packaging material. Several other objections were also raised by the defendant -respondent. Learned trial Court after hearing both the parties dismissed the application filed by the appellant leading to filing of this civil misc. appeal. It was observed by the Court below that party's label/packaging are different and, therefore, there is no question of any confusion and deception on the part of the consumers. It was observed that the colour combination, design etc of the respondent packing label is entirely different from the appellant's packing label. For its conclusion learned Court below also relied upon the fact that the trademark of the appellant -company has been registered with the condition/limitation/disclaimer that the registration of this trademark shall give no right to the appellant for exclusive use of descriptive matters on the label. It was also held by the learned trial Court that the trademark of the appellant "Maheshwari" is a surname and the trademark of "Maleshwari" is prima facie different from appellant's trademark.;