MYSORE DEEP PERFUMERY HOUSEHOLD Vs. SUNILKUMAR AMRUTLAL JAIN

JUDGEMENT

(1.) The appellant - original plaintiff has preferred the present appeal against the order dtd. 18/06/2021 passed by the learned Ad-hoc District Judge-2, Nagpur, in application below Exh.5 under the provisions of Order 39, Rule 1 and 2 of the Code of Civil Procedure (for short, "the Code") in Trade Mark Civil Suit No.5/2019, whereby the learned Judge was pleased to reject the application.

(2.) The appellant - plaintiff is a registered Partnership Firm and is carrying out business of marking and exporting of all kinds of goods like Agarbati, Scent, Perfume, Camphor, Dhoop, etc. under the provisions of Trade Marks Act including trade mark "Zed Black". The appellant started using trade mark "Shriphal" for the products in respect of Agarbati, Scent, Perfume, Camphor, Dhoop, etc. falling in Class-3 since 1992. The Registered trade mark is renewed from time to time and the same has become conclusive. The appellant has also given status of all other trade marks in Para No.14 of the plaint.

(3.) According to the appellant - plaintiff, the defendant was purchasing the said goods from him with various Marks including "Shriphal" since 1994. In the month of September, 2014, the appellant - plaintiff came to know about the illegal activities of the defendant to the effect that the defendant has started to use impugned Marks in its impugned goods and therefore, on 03/09/2014, appellant - plaintiff served a cease and desist notice upon the respondent - defendant and asked him to stop illegal activities with impugned Marks "Zed Black" and "Shriphal". On 16/09/2014, the respondent - defendant replied the said notice and admitted the contents of the cease and desist notice. He also acknowledged the legal right of the appellant and undertook not to use any Mark "Shriphal". This being so, the appellant continued to supply the said goods to the respondent with various Marks including Mark with "Shriphal". It may be noted here that the respondent denied the claim of the appellant in respect of Mark "Shriphal" on the ground that it being public juris but without any claim of user by him. However, respondent started to object / oppose the trade marks registration application of the appellant - plaintiff.