Law:

Section:

(a) Trade Marks Act (V of 1940) Ss.21, 22, 25 & 26 Right conferred by registration ¬Scope Exclusivity of user attached to registered trade mark is not absolute, but is subject to limitation as provided under Ss.22, 25 & 26 of the Trade Marks Act, 1940 Such exclusivity would not affect the right of a prior user, though unregistered Right in trade mark created by prior user despite non registration is superior right recognized under S.25 of the Act. Abdul Wasim v. Messrs SACO Traders Private Limited and another Suit No.369 of 2001 fol. (b) Trade Marks Act (V of 1940) S.25 Unregistered prior user of disputed trade mark ¬Claim by such user for protection under S.25 of Trade Marks Act, 1940 against infringement action Burden of proof ¬Principles. By virtue of section 25 of Trade Marks Act, 1940, protection against infringement action is extended to the unregistered user of a trade mark. To claim such right, burden is on the person claiming protection under section 25 of the Act. A person claiming right of a prior user in terms of section 25 has to prima facie demonstrate that contesting mark is in his continuous use; such continuous use is prior in time to the mark used by a person, who claimed to be a proprietor of such mark and or from the date of registration of the subject mark in respect of the same goods, and there is honest and concurrent user as recognized under section 10(2) of the Act. Initial burden is on the person claiming rights under section 25 of the Act, to prima facie demonstrate through material his prior use of the contesting mark. (c) Civil Procedure Code (V of 1908) O.XXXIX, Rr.1 & 2 Application for temporary injunc¬tion Decision of Tentative assessment of pleadings etc. ¬Interlocutory applications like one under O.XXXIX, Rr.1 & 2, C.P.C., are generally decided on the basis of tentative assessment of pleadings, affidavits, counter affidavits, rejoinder, if any, and documents annexed thereto. (d) Trade Marks Act (V of 1940) Ss.21 & 25 Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2 Suit for injunction, infringement and accounts ¬Application for grant of temporary injunction Photo copies of sale invoices produced by…

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