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.
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.
