TM No. 27 of 18
Title : Mahesh Namkeen Pvt. Ltd. Vs. Patola
Industies and anr
27-03-2018
Present : Sh. Ajay Amitabh Suman, Ld. Counsel for the
plaintiff.
None is present for the defendant.
Ld.
Counsel for the plaintiff has submitted that he has received the copy of
application under order 39 rule 4 CPC filed on behalf of the defendant. He
seeks some time to file reply of the same.
I
have considered the submissions, as none is present for the defendant,
therefore, put up at 11.30 a.m
( CHANDRA SHEKHAR )
Additional District Judge-04
Judge Code : DL0003
PHC, New Delhi/27.03.2018
At 12.50 p.m
Present : Sh. Som Nath Dey, Ld. Counsel for the plaintiff.
None is present for the defendant.
Put up at 2 p.m.
( CHANDRA SHEKHAR )
Additional District Judge-04
Judge Code : DL0003
PHC, New Delhi/27.03.2018
At 2.45 p.m
Present
: Sh. Ajay Amitabh Singh, Sh.
Kamal Naresh, Sh. Rahul Sharma and Sh. Som Nath Dey, Ld. Counsel for the
plaintiff.
Ms.Aparna Jain with Ms.
Shashav Manu, Ld. Counsel for the defendant.
I have heard the submissions of both the parties
on pending application
...cont2 /-
of the defendant under order 39 rule 4 CPC.
Ld.
Counsel for the defendant has submitted that initially the trademark MAHESH was
registered in the name of Rajesh Sindhwani in the year 2011, the application
was filed in the year 2008 though the use of the said trademark was started
since year 2000. The registration is in class 30 of Trade Marks Act.
Thereafter, Sh. Rajesh Sindhwani became partner in Patola Industries i.e.
defendant no.1 in the year 2010, he had through an affidavit transferred the
rights of the said trademark in the name of Patola Industries. Since then
Patola Industries which is partnership firm is using the said trademark. The
plaintiff had given a cease and desist notice on 22.08.2016, the defendant
replied to that notice on 23.09.2016 stating that defendant is using the
trademark in question since 2000 and the fact that earlier it was in the name
of Sh. Rajesh Sindhwani but the same was transferred in the year 2010 in the
same of defendant was also disclosed in the said reply. There was a
typographical error on the part of concerned trademark office regarding description
of the goods for which trademark MAHESH was registered. The defendant had
applied for registration in class 30 for its goods namkeen and sweets but the
said trademark office registered the same for the goods Madhuram Sweets.
Therefore, the defendant applied for correction of the certificate much prior
to receiving of the aforesaid notice from the plaintiff. As the defendant is
the registered owner in the same class in which the plaintiff is registered and
for the same trademark and same kinds of goods, therefore, defendant be
permitted to carry on its business till disposal of the application filed by
defendant under order 39 rule 4 CPC and the application of the plaintiff under
Order 39 rule 1 and 2 CPC.
Ld.
Counsel for the plaintiff has opposed the submissions of Ld. Counsel for the
defendant stating that in reply to the aforesaid cease and desist notice
defendant had not disclosed that defendant had applied for registration in
class 30 for its goods for namkeen and bhujiya. The certificate in question
reflected that defendant is registered in class 30 for Madhuram Sweets. The
defendant had also not disclosed in reply that Sh. Rajesh Sindhwani had ever
transfer his rights of registration of the aforesaid trademark in the name of
defendant, therefore, plaintiff was not aware
...cont3/-
: 3 :
that the said trademark was
transferred in the name of the defendant. The plaintiff had filed reply of the
defendant alongwith the plaint, therefore, plaintiff has not suppressed
anything. The renewal form has been filed in November, 2017 in the name of
Rajesh Kumar Sindhwani only, therefore, if the rights relating to the trademark
was transferred how renewal can be sought in the individual name. Ld. Counsel
for the plaintiff has relied upon the judgment 'Neon Laboratories ltd. Vs. Medical
Technologies Ltd. and ors. in Civil appeal no. 1018 of 2006; 2015 (64) PTC 225
(SC) decided on 05.10.2015'.
I
have heard the submission of Ld. Counsel for both the parties and perused the
record.
It
seems at this stage that both the parties are the registered proprietor in
class 30 for the trademark MAHESH, the defendant has claimed that defendant
applied for registration of the trademark MAHESH in the year 2008 claiming use
since 2000. The disposal of the application under Order 39 rule 1 and 2 CPC of
the plaintiff and under Order 39 rule 4 CPC of the defendant will take some
time. It seems that since defendant no.1 is also the registered proprietor of
trademark MAHESH, therefore, it is in the interest of justice that permission
be given to the defendant to carry on its business using trademark MAHESH till
disposal of the aforesaid applications, subject to the condition that the
defendant shall maintain the record of the sale of its goods and keep on filing
the invoices/receipts in the court after every 15 days and simultaneously
supply copy of the same to the plaintiff. However, it is clarified that the
observation made in this order shall have no affect on the merits of the case
at any stage.
Plaintiff
is directed to supply the copy of the plaint and documents to the Ld. Counsel
for the defendant within two days from today.
Put
up for filing reply and arguments on the application under Order 39 rule 1 and
2 CPC of the plaintiff and under Order 39 rule 4 CPC of the defendant on
10.04.2018. Both the parties are directed to file the documents, exchange the
copies of
...cont. 4/-
reply and rejoinder prior to the next date
through their respective counsel.
Copy of the
order be given dasti to Ld. Counsel for both the parties, as
prayed.
( CHANDRA SHEKHAR )
ADJ-04 Judge Code : DL0003
PHC, New Delhi/27.03.2018
