Law: Trade Marks Act, (V of 1940)

Section: 21

Trade Marks Act (V of 1940)--Ss. 21, 25 & 26--- Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2--- Specific Relief Act (I of 1877), S. 54--¬Plaintiff, who claimed to be proprietor of Trade Mark "GRANITTO" registered in his name, had sought restraining order against defendant from infringing and/or passing off his products using the said trade mark---Plaintiff had also filed application under O.XXXIX Rr.1 & 2, C.P.C. for grant of temporary injunction---Defendant, who claimed that he was importing goods and was using trade mark "GRANITTO" since last many decades much prior to adoption of said mark by plaintiff, could not produce any documents in proof of his claim---Defendant could successfully resist injunctive order provided he was able to produce documents to show that he had statutory defence recognized under Trade Marks Act, 1940 but he failed to produce the same---In absence of any such defence, injunction could not be refused to the plaintiff--Application for grant of temporary injunction was granted as prayed for by plaintiff. ORDER Listed application C.M.A. No.997 of 2004 under Order XXXIX, rules 1 and 2 seeks restraining orders against the defendant from infringing and/or passing off their products using Trade Marks 'Granito' or any other similar close variation thereof. Case of the plaintiff in the nutshell appears to be that the plaintiff are proprietor and registered holder of Mark "Grannitto" in clause-19. It appears that such mark was applied on 1-3-2000, registration was granted on 7-2-2004, case of the plaintiff is that the defendant had adopted similar mark abbreviating the spelling to read as "Granito". The mark is applied by the defendant on similar product. In terms of section 21 of the Trade Mark, Act, holder of registered trade mark has exclusive right to use mark to the exclusion of any other person. Sections 24, 25 and 26 of the Trade Mark Act. Defendant has filed counter affidavit. It is contended by learned counsel for the defendant that defendant is in the same trade since over decade and dealing in sanitary product. According to the learned counsel, defendant is importing said tiles from Indonesia. According to the…

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