- (1.) This appeal has been preferred against the order dated 15th March, 2012 passed by the learned District Judge Vth, Dhanbad in Title Suit Trade Mark No. 147 of 2011 whereby and whereunder the application under order XXXIX Rule 1 and 2 read with section 151 of the Code of Civil Procedure filed on behalf of the appellant i.e. M/s. Mongia Steel Limited has been rejected and hence the appellant is praying for grant of injunction and restraining the defendant M/s. Shri Khatu Shyamji Cement Mfg. private Ltd. from using manufacturing, marketing, selling, distributing, advertising of cement and TMT bars of all kinds or allied goods/products bearing the mark of Mongia and other mark deceptively similar to the appellant's registered trade mark.
(2.) Learned counsel for the appellant has submitted that the appellant is a company registered under Companies Act, 1957 and has been incorporated as M/s. Mongia Hi Tech Private Limited. It has been argued that the appellant has been manufacturing, marketing and selling TMT bars and cements of all kinds since 1995 under a valid licence and products and goods manufactured by the appellant is under the trade mark of Mongia, Mogia Steel, Mongia Cement and Mongia TMT Turbo having specific artistic get up and design and no objection/search certificate has been issued by the Registrar of Trade Mark to the appellant under the aforesaid registered trade mark of Mongia which has acquired substantive goodwill and reputation in the market. It is argued that the Court below has not appreciated the fact that the defendant has adopted the trade name of M/s. Mongia Super Cement and have been selling, manufacturing and marketing the said cement on the basis of goodwill of the trade mark of Mongia. That the court below should have considered and appreciated the fact that the use of trade name of Mongia amounts to passing off action by the defendant and the court below has rejected the application of the appellant for grant of temporary injunction only on the ground that he has used the registered trade mark of Mongia Super Cement. It is argued by the learned counsel that just because the appellant did not have registration of Mongia Super Cement is not a ground for rejecting the prayer for injunction and in support of his argument, he relied on the decision, in the case of N.R. Dongre and Others v. Whirlpool Corporation and Another, 1996 5 SCC 714. On the above ground, it is submitted that the impugned order is fit to be set aside and the appellant deserves to be protected for infringement of the trade mark by issuance of injunction against the respondent for using the trade name of Mongia.
(3.) On the other hand, learned counsel for the respondent has submitted that, it is evident from the material available on record, it is manifest that the plaintiff-appellant has not produced the certificate of registration issued by the Registrar of Trade Mark with regard to the trade mark of Mongia Super Cement whereas the defendant-respondent had filed the certificate of registration of Mongia Super Cement registered in the name of Parvati Super Cement Private, Limited. The said certificate was issued by the Registrar of Trade Mark vide Trade Mark No. 1505239, Govt. of India. The defendant-respondent has also filed the photo copy of deed of assignment entered into by Parvati Super Cement Private Limited with regard to assigning the trade mark registered under Application No. 1505239 along with goodwill.;