J.P. Engineering Works vs Manoj Jain and Another

Shishir Kumar, J.—Heard Sri H.S. Misra, Advocate, holding brief of Sri Brij Gopal Tripathi, learned Counsel for the Appellant and Sri A.K. Gupta, Senior Advocate, assisted by Sri Madhav Jain, learned Counsel for the Respondents.

This first appeal from order has been filed against the order passed by the court below on an application filed by the Plaintiffs / Respondents as 7-Ga for injunction restraining the Appellant from using the trade mark, which is being used by him.

Sri Misra, learned Counsel appearing for the Appellant has submitted that as no registered trade mark by the competent authority is allotted in favour of the Plaintiffs, therefore, in view of Section 27 of the Trade Marks Act, 1999, a suit itself is not maintainable. Section 27 of the Act is being quoted below:

No action for infringement of unregistered trade mark.-(1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark.

(2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof.

Taking support of the aforesaid provision, learned Counsel for the Appellant has submitted that from the averment made in the plaint as well as from the judgment, it is clear that Plaintiffs have made an application to that effect, but uptil date no registration has been granted. Admittedly, in favour of the Appellant the trade mark has been registered, therefore, he can only use the same.

On the other hand, Sri A.K. Gupta, learned Counsel for the Respondents has placed reliance upon Section 27(2) of the Act.

Apart from the arguments, raised on behalf of the parties, from the perusal of the record, it appears that the court below has fixed 07.04.2011, for final hearing, when such order restraining the Defendant / Appellant was passed on 21.02.2011, therefore, I am of the view that the objection regarding maintainability of suit in view of Section 27 of the Act can be taken by the Defendant / Appellant on 07.04.2011. The Defendant / Appellant can file an objection to that effect and if such objection is filed, taking support of Section 27 of the Act, the court below is obliged to take into consideration the same and to record a finding, accordingly.

In view of the aforesaid fact, the Court is not interfering at this stage being the fact that 07.04.2011 is fixed for final hearing. If such objection regarding maintainability of the suit is filed by the Appellant, then the court below is directed to decide the same on the date fixed or within the period of one month from the date of passing such order.

The appeal is disposed of accordingly.

No order as to costs.