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Wednesday, August 6, 2014

Sec.35 of Trade Marks Act, 1999. - Suit for injunction restraining the defendant from doing business in the same surname of the plaintiff - Lower court granted interim injunction - Apex court held that Section 35 of the Act permits anyone to do his business in his own name in a bona fide manner. In the instant case, it is not in dispute that the defendants are doing their business in their own name and their bona fides have not been disputed. It is also not in dispute that the plaintiff and defendants are related to each other and practically all the family members are in the business of jewellery. We have perused the hoardings of the shops where they are doing the business and upon perusal of the hoardings we do not find any similarity between them. In our opinion, looking at the provisions of Section 35 of the Act, there is no prima facie case in favour of the plaintiff and therefore, the defendants could not have been restrained from doing their business. We, therefore, quash and set aside the impugned order granting interim relief in favour of the plaintiff and the appeal is allowed with no order as to costs.= CIVIL APPEAL NO.7191 OF 2014 (Arising out of SLP(C)No.9942 of 2013) Precious Jewels & Anr. … Appellants Versus Varun Gems ..Respondent = 2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41802

   Sec.35 of Trade  Marks  Act,  1999. - Suit for injunction restraining the defendant from doing business in the same surname of the plaintiff - Lower court granted interim injunction - Apex court held that Section 35 of  the  Act  permits  anyone  to  do  his business in his own name in a bona fide manner.  In the instant case, it  is not in dispute that the defendants are doing their  business  in  their  own name and their bona fides have  not  been  disputed.   It  is  also  not  in dispute that the plaintiff and defendants are  related  to  each  other  and practically all the family members are in the business of jewellery. We have perused the  hoardings  of  the  shops  where  they  are  doing  the business and upon perusal of the hoardings we do  not  find  any  similarity between them. In our opinion, looking at the provisions of Section 35 of  the  Act,  there is no prima facie case  in  favour  of  the  plaintiff  and  therefore,  the defendants could not have been restrained from  doing  their  business.   We, therefore, quash and set aside the impugned order  granting  interim  relief in favour of the plaintiff and the appeal is allowed with  no  order  as  to costs.=

As the suit is pending for its final disposal and we  are  merely  concerned
with an interlocutory order, without expressing any opinion, we are  of  the
view that the interlocutory order passed by the Court below is not just  and
proper in view of the provisions of Section 35 of the Act.

As stated hereinabove, Section 35 of  the  Act  permits  anyone  to  do  his
business in his own name in a bona fide manner.  In the instant case, it  is
not in dispute that the defendants are doing their  business  in  their  own
name and their bona fides have  not  been  disputed.   It  is  also  not  in
dispute that the plaintiff and defendants are  related  to  each  other  and
practically all the family members are in the business of jewellery.

We have perused the  hoardings  of  the  shops  where  they  are  doing  the
business and upon perusal of the hoardings we do  not  find  any  similarity
between them.

In our opinion, looking at the provisions of Section 35 of  the  Act,  there
is no prima facie case  in  favour  of  the  plaintiff  and  therefore,  the
defendants could not have been restrained from  doing  their  busines.   We,
therefore, quash and set aside the impugned order  granting  interim  relief
in favour of the plaintiff and the appeal is allowed with  no  order  as  to
costs.

We clarify that we  have  only  expressed  our  prima  facie  view  and  the
observations, if any, made in this judgment shall not be  treated  as  final
and the trial Court shall decide the case  on  the  basis  of  the  evidence
which might be adduced before it and on the facts of the case.

2014 - Aug.Part - http://judis.nic.in/supremecourt/filename=41802

                                                           NON-REPORTABLE




                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.7191 OF 2014
                   (Arising out of SLP(C)No.9942 of 2013)


Precious Jewels & Anr.                  … Appellants







                   Versus

Varun Gems                              ..Respondent


                               J U D G M E N T

1


2


3 ANIL R. DAVE, J.



Leave granted.

Being aggrieved by an interim order passed in a civil suit, the  appellants-
original defendants have approached this Court by way of this appeal.

The matter has arisen under the provisions of the  Trade  Marks  Act,  1999.
It is an admitted fact that the partners of the plaintiff  as  well  as  the
defendant firms belong to  the  same  family  sharing  a  common  surname  –
“Rakyan”.

The defendants are dealing  in  jewellery,  which  is  admittedly  a  family
business of the plaintiff as well as  the  defendants.  The  defendants  are
doing business in the name and style of “NEENA  AND  RAVI  RAKYAN”,  whereas
the plaintiff firm is also dealing in jewellary and doing  the  business  in
the name and style of “Rakyan's Fine Jewellery”.  Both  are  doing  business
in Delhi and their shops are abutting each other.

The plaintiff claiming trade mark of their surname  “RAKYAN”  filed  a  suit
praying, inter alia, that the defendants  be  restrained  from  doing  their
business in the name and style of “NEENA AND  RAVI  RAKYAN”.   In  the  said
suit, an application seeking interim relief was filed whereby it was  prayed
that the defendants be restrained from doing the business in  the  name  and
style of “NEENA AND RAVI RAKYAN”.  By virtue  of  the  impugned  order,  the
defendants i.e. the present  appellants  have  been  restrained  from  doing
their business in the concerned name  and  therefore,  the  appellants  have
approached this Court.

It is an admitted fact, as stated hereinabove,  that  the  partners  of  the
plaintiff as well as defendant firm being to one family and they are in  the
business of jewellery and they have got a large family  and  there  are  not
less than 15 business units belonging  to  the  family  members,  which  are
dealing in jewellery in different names and styles.

It had been submitted by the learned counsel appearing  for  the  appellants
that they could not have been restrained from doing their  business  in  the
name and style of “NEENA AND RAVI RAKYAN” for the reason that  the  partners
in the said firm are Smt. Neena Rakyan and Shri Ravi Rakyan and they  cannot
be restrained from doing their business in  their  own  name.   The  learned
counsel had referred to some of the judgments and  had  mainly  relied  upon
Section 35 of the Trade Marks Act, 1999 (hereinafter  referred  to  as  “the
Act”).  It had been further submitted that the interim  order  whereby  they
have been restrained from doing their  business  is  absolutely  unjust  and
improper in view of provisions of Section 35  of  the  Act,  which  read  as
under :-


“35.  Saving for use of name, address or description of goods  or  services.
- Nothing in this Act shall entitle the proprietor or a registered  user  of
a registered trade mark to interfere with any bona fide use by a  person  of
his own name or that of his place of business, or of the  name,  or  of  the
name of the place of business of any of his  predecessors  in  business,  or
the use by any person of any bona  fide  description  of  the  character  or
quality of his goods or services.”



On the other  hand,  the  learned  counsel  appearing  for  the  respondent-
plaintiff had vehemently submitted that the defendants had no  right  to  do
their business in the shop which is next to the shop of  the  plaintiff  and
they have no right to use the word “RAKYAN” in the name of their shop.   The
learned counsel appearing for the respondent/plaintiff had also relied  upon
some of the judgments to substantiate  his  case  and  to  submit  that  the
appeal deserved dismissal.

As the suit is pending for its final disposal and we  are  merely  concerned
with an interlocutory order, without expressing any opinion, we are  of  the
view that the interlocutory order passed by the Court below is not just  and
proper in view of the provisions of Section 35 of the Act.

As stated hereinabove, Section 35 of  the  Act  permits  anyone  to  do  his
business in his own name in a bona fide manner.  In the instant case, it  is
not in dispute that the defendants are doing their  business  in  their  own
name and their bona fides have  not  been  disputed.   It  is  also  not  in
dispute that the plaintiff and defendants are  related  to  each  other  and
practically all the family members are in the business of jewellery.

We have perused the  hoardings  of  the  shops  where  they  are  doing  the
business and upon perusal of the hoardings we do  not  find  any  similarity
between them.

In our opinion, looking at the provisions of Section 35 of  the  Act,  there
is no prima facie case  in  favour  of  the  plaintiff  and  therefore,  the
defendants could not have been restrained from  doing  their  busines.   We,
therefore, quash and set aside the impugned order  granting  interim  relief
in favour of the plaintiff and the appeal is allowed with  no  order  as  to
costs.

We clarify that we  have  only  expressed  our  prima  facie  view  and  the
observations, if any, made in this judgment shall not be  treated  as  final
and the trial Court shall decide the case  on  the  basis  of  the  evidence
which might be adduced before it and on the facts of the case.



                                                          ................J.
                                                              (ANIL R. DAVE)



                                                          ................J.
                                                            (VIKRAMAJIT SEN)
NEW DELHI
AUGUST 4, 2014.

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