### Introduction
This judgment from the Delhi High Court delves into a classic trademark infringement and passing off dispute centered on the mark "ATHERMAL," used in connection with welding safety glasses and related apparatus, highlighting the tensions between prior use and statutory registration under the Trade Marks Act, 1999. The appellant, Amit Bansal, operating as M/s Ambay Industrial Corporation, challenged the trial court's interim injunction favoring the respondents, Amit Garg and his associated entity, restraining the appellant from using the mark during the pendency of the suit. The case underscores the doctrine of prior user superiority, the inapplicability of approbate and reprobate in certain contexts, and the necessity for courts to scrutinize user claims through predecessors equitably, without disparate treatment. It also examines allegations of fabricated evidence and the impact of positions taken before the Trade Marks Registry, ultimately reversing the trial court's order by recognizing the appellant's prima facie prior use dating back to 1990 through familial business continuity, while dismissing the respondents' claims based on inconsistencies and later adoption in 2003. This decision reinforces that registration does not trump established prior use and cautions against selective acceptance of oral family settlements without corresponding scrutiny of similar predecessor claims, setting a precedent for balanced interim relief in trademark litigation.
### Factual Background
The respondents initiated the suit claiming exclusive rights to the mark "ATHERMAL" for manufacturing and marketing welding apparatus, cables, regulators, transformers, machines, tools, and particularly safety glasses, asserting that the appellant illegally imitated it, leading to infringement and passing off. Respondent No. 1, Amit Garg, trading as M/s Athermal Industries AG, maintained that the mark was honestly coined and adopted in 2003 by his predecessor, Respondent No. 2, a proprietorship concern run by family members, specifically his mother under M/s Shiva Traders, with rights transferred via an oral family settlement. They filed for registration on 25.03.2010 under Application No. 1941345 in Class 9, securing certificate No. 1692988 on 01.11.2017 with a claimed user date of 18.04.2005. Additional applications were filed by respondents in subsequent years, including No. 2207990 in 2011, No. 2277143 and 2277118 in 2012, No. 2543087 in 2013, and others, some of which cited the appellant's marks as conflicting, prompting responses from respondents asserting dissimilarity to overcome objections. The appellant, in his written statement and counterclaim, contended that the mark "ATHERMAL" was adopted and used since 1985 by his father, Rajinder Kumar Bansal, trading as M/s Ambay Traders and Manufacturers from the same premises, with the appellant continuing independently from 2006 under M/s Ambay Industrial Corporation with his father's permission, raising invoices accordingly. The appellant applied for registration in 2011 under Nos. 2135186 (Class 9) and 2135185 (Class 7) with initial user date of 01.04.2006, later seeking amendment to 01.04.1985 post-opposition by respondents. Both parties accused each other of fabricating invoices: respondents produced five from 2003-2011, which appellant claimed were forged, supported by telephonic confirmations and a police complaint, while appellant's 1990-1999 invoices were labeled fabricated by respondents, noting abandonment post-1999 and lack of formal assignment. The dispute escalated with mutual interim applications under Order XXXIX Rules 1 & 2 CPC, leading to the trial court's favoritism toward respondents based on registration and perceived prior use.
### Procedural Background
The respondents filed the suit in 2018 before the Additional District Judge, Rohini Courts, Delhi, seeking permanent injunction against infringement and passing off, accompanied by an interim application under Order XXXIX Rules 1 & 2 CPC. The appellant filed a written statement cum counterclaim denying claims and asserting prior use, along with his own interim application for restraint against respondents. On 05.01.2019, the trial court allowed the respondents' application, restraining the appellant from using "ATHERMAL" or similar marks, while dismissing the appellant's, citing respondents' registration and adoption in 2003 versus appellant's independent start in 2006 without assignment proof. Aggrieved, the appellant appealed under Order XLIII Rule 1 read with Section 151 CPC. Notice was issued on 25.01.2019, and on 08.02.2019, the High Court stayed the impugned order, observing disparate treatment of predecessor user claims. Interim observations followed: on 09.12.2022, the mark was deemed prima facie descriptive for welding glasses implying heat resistance; on 06.07.2023, respondents' admissions of dissimilarity in registry replies were noted as potentially impactful per Raman Kwatra v. KEI Industries Ltd., with stay continued. Submissions were heard on 15.09.2025, 14.10.2025, and 18.11.2025, with judgment reserved on 18.11.2025 and pronounced on 31.01.2026, allowing the appeal, setting aside the impugned order, rejecting respondents' interim plea, and granting the appellant's, thereby restraining respondents pendente lite.
### Reasoning and Decision of Court
The court meticulously analyzed the core issues of prior use, registration validity, and applicability of approbate and reprobate, beginning with the latter by referencing Raman Kwatra, where a party securing registration by asserting dissimilarity cannot later seek injunction claiming similarity. However, it distinguished the case, noting that while respondents repeatedly claimed dissimilarity in replies to examination reports citing appellant's marks for their secondary applications, the primary registered mark (No. 1941345) was not objected on that basis, thus no approbate/reprobate arose for the suit's foundation, as no registration was obtained on such assertions for that mark. Shifting to prior use, the court emphasized its superiority over registration, scrutinizing claims: appellant's invoices from 1990 under father's firm, shared premises, and familial relation established prima facie continuity since 1985, rejecting trial court's dismissal for lack of formal assignment without similar scrutiny of respondents' oral family settlement with mother-run entity, which lacked her verification in the plaint. The court deemed trial court's treatment disparate, accepting respondents' 2003 user while ignoring appellant's earlier evidence, and dismissed fabrication allegations as trial matters, finding no prima facie proof on record. Balancing equities, irreparable harm, and convenience, the court held appellant's prior use since 1990 trumped respondents' 2003 claim and 2017 registration, setting aside the impugned order, rejecting respondents' interim application, and allowing appellant's, restraining respondents from using "ATHERMAL" or similar marks for specified goods pendente lite, clarifying observations were interim without prejudicing trial merits.
### Point of Law Settled in the Case
The judgment solidifies that prior continuous use of a trademark through a predecessor-in-title, evidenced by invoices and familial business continuity from a shared premises, establishes superior rights over subsequent registration, even without formal assignment deeds, provided claims are not disparately scrutinized compared to similar oral settlements claimed by opponents. It clarifies that the doctrine of approbate and reprobate bars interim relief only where registration is secured by asserting dissimilarity to a cited mark, not extending to suits based on registrations untainted by such assertions, despite similar positions in collateral applications. The ruling mandates equitable evaluation of predecessor user claims at interim stages, rejecting selective acceptance without verification, and underscores that fabrication allegations require trial adjudication, not preempting prima facie prior use findings, thereby prioritizing user evidence over registration in balancing interim injunction factors under Order XXXIX CPC.
**Case Detail**
Title: Amit Bansal Vs. Amit Garg & Anr.
Date of Order: 31.01.2026
Case Number: FAO-IPD 37/2021
Neutral Citation: N/A
Name of Court: High Court of Delhi at New Delhi
Name of Hon'ble Judge: Hon'ble Mr. Justice Tejas Karia
Disclaimer: Readers are advised not to treat this as substitute for legal advise as it may contain errors in perception, interpretation, and presentation
Written By: Advocate Ajay Amitabh Suman, IP Adjutor [Patent and Trademark Attorney], High Court of Delhi
**Suggested Titles:**
1. Delhi High Court Upholds Prior Use Over Registration in Athermal Trademark Dispute: A Deep Dive
2. Reversal of Interim Injunction: Analyzing Amit Bansal vs. Amit Garg on Familial Trademark Continuity
3. Prior User Triumphs: Insights from the Athermal Mark Appeal on Approbate and Reprobate Limits
**Suggested Tags:**
Trademark Infringement, Prior Use Doctrine, Interim Injunction, Approbate and Reprobate, Familial Business Succession, Delhi High Court Judgment, Trade Marks Act 1999, Passing Off, Fabrication of Evidence, Order XXXIX CPC
**Headnote of Article:**
Delhi High Court allows appeal against trial court's interim injunction in trademark suit over "ATHERMAL," holding appellant's prima facie prior use since 1990 through predecessor superior to respondents' 2017 registration and 2003 claim, distinguishes approbate and reprobate as inapplicable to primary mark, sets aside order, and grants injunction to appellant pendente lite.
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The case involves a dispute over the trademark 'ATHERMAL' for welding safety glasses and related goods in Class 9. Respondents (Amit Garg trading as Athermal Industries AG and family proprietorship) claimed adoption since 2003, filed registration application in 2010, and obtained registration in 2017, filing suit CS No. 1/2018 for permanent injunction against infringement and passing off by appellant Amit Bansal.
Appellant claimed prior use since 1985 by his father Rajinder Kumar Bansal (Ambay Traders), continuing independently from 2006 (Ambay Industrial Corporation) at the same premises, with pending applications from 2011, asserting respondents' business started only in 2011. Trial Court granted interim injunction to respondents and denied to appellant via order dated 05.01.2019.
Appellant appealed under Order XLIII Rule 1 CPC. High Court stayed the impugned order in 2019, noted 'ATHERMAL' as prima facie descriptive (non-heat absorbing) in 2022, observed respondents' prior admission of difference in marks during examination, and heard arguments in 2025.
The Court held that 'ATHERMAL' lacks distinctiveness for welding glasses, prior user evidence (invoices since 1985) favored appellant, respondents' registration post-dated appellant's claimed use, and respondents' inconsistent stance weakened their case. Appeal allowed, impugned interim injunction set aside, respondents' application dismissed, appellant's application allowed restraining respondents from using 'ATHERMAL', with suit to proceed on merits without prejudice.
Law Point Settled:
Trademark 'ATHERMAL' for welding safety glasses (indicating non-heat absorption) are prima facie not entitled to protection unless secondary meaning is established; prior use prevails over later registration in interim relief.
Inconsistent positions by a party (e.g., claiming marks different during opposition but alleging similarity in suit) can impact credibility and entitlement to interim injunction
For descriptive or common marks, evidence of prior continuous open use (e.g., invoices from 1985) tilts balance of convenience in interim stage toward the prior user, especially when registration is recent and adoption claim disputed.
Case Title: Amit Bansal Vs.Amit Garg: 31.01.2026: FAO-IPD 37/2021:2026:DHC:798; Hon'ble Mr. Justice Tejas Karia.
Disclaimer: Readers are advised not to treat this as substitute for legal advise as it may contain errors in perception, interpretation, and presentation]
Written By: Advocate Ajay Amitabh Suman, IP Adjutor [Patent and Trademark Attorney], High Court of Delhi
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