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Judgment
Prabha Sridevan, J
This is a petition for grant of stay. The stay of the registration of the Trade Mark 1574165 ""JAIN JEWELLERS"" in class 14 in the name of M/s.
SURASTI OVERSEA LIMITED. This rectification is actually between two family members. There was a business in bullion by the name M/s.
ARJUN DEV NAKUL DEV. The said firm wa carrying out business at Gandhi Chowk. The partners were Arjun Dev and Nakul Dev and the
director of the respondent is the son of Arjun Dev. According to the applicant, after Nakul Dev expired Manoj Jain was taken as partner by the Deed
of Partnership dated 18.6.1986. According to the applicant the shop's name is JAIN JEWELLERS and its business was carried out at Gandhi Chowk
from October 1990. I had a logo consisting of a device of ""a bird carrying a pearl"" with encircled alphabet 'J' representing the first letters ""JAIN
JEWELLERS"". In 2004, a new showroom wa opened at Rajguru Market. The partners of M/s. ARJUN DEV NAKUL DEV, a HU through Manoj
Jain Kartha and Kumud Jain, wife of Manoj Jain. In 2007, Arjun Dev retired and a new partner with three others run the business. But the showroom
in the same place and the PAN number is also the same. The application registered in class 14 in the year 1999. Initially, Manoj Jain and Kumud Jain
were directors in the respondent company. Around this time Arjun Dev retired from the partnership firm M/s. ARJUN DEV NAKUL DEV in 2007.
Manoj Jain and Kumud Jain resigned from th Board of the respondent company. Vinod Jain is one of the directors of the respondent company and
was in employment in the applicant company. According to the applicant, the respondent's adoption is illegal. The Learned Counsel for the applicant
submitted that the applicant was using the mark from 2006. Several documents were referred to by the Learned Counsel for the applicant. We only
refer to the crucial documents for the grant of considering the stay petition. The business JAIN JEWELLERS at Gandhi Chowk was in existence
from 1993. Exhibit 'G (collectively) show the word JAIN JEWELLERS along with the logo of ""a bird carrying a peal necklace"". After 2005, there are
vouchers which shows JAIN JEWELLERS along with the words Nakul Dev and Manoj Jain. There are also vouchers of JAIN JEWELLERS at 96,
Rajguru Market which is the address of the respondent issued in favour of M/s. Arjun Dev Nakul Dev from 11.12.2004. Exhibit 'J' (collectively) show
this. Photographs have been produced of both the JAIN JEWELLERS . There are als documents to show that Vinod Jain has received salary from
M/s. Arjun Dev Nakul Dev. According to the counter statement the fact that the payment made to him by the company was ""salary"" would not mean
that he was an employee. Almost all the partners / stock holders were only paid salary. The respondent has also produced documents along with his
counter statement. In the counter statement, it is stated that upto a point the families of Arjun Dev and Nakul Dev were both in the Partnership and
also in the respondent company and it is only there after that there was a separation. It is stated that the applicant knew that the respondent was
carrying on business at Rajguru Market at Hissar and deliberately he opened a new showroom at 107, Rajguru Market to cause confusion. So the
respondent filed a civil suit at the District Court at Hissar, Haryana and this is pending. According to the counter statement, the respondent's use of
the mark was to the knowledge of the applicant who was also instrumental in promoting the company when it was incorporated and they were aware
of adoption of this mark. There are documents to show that 96, Rajguru Market was the address for JAIN JEWELLERS at least from 2004. These
vouchers also show that the same logo of the ""bird carrying a pearl necklace"". Vouchers also show that there have been transactions between JAIN
JEWELLERS and M/s. Arjun Dev Nakul Dev. VAT registration was produced of the year 2004 which shows that JAIN JEWELLERS is a unit of
M/s. Surasti Overseas Limited The applicants own admission is that he and his wife retired from the Board of the respondent company only in 2007.
The Learned Counsel for the applicant relied on the case in Harmohan Singh Vs. Gurbax Singh 2001 PTC 629 (Del) Where it was held that after
dissolution of a firm where the defendant had surrendered all his rights and interest in the firm in favour of the plaintiff, the plaintiff is entitled to
injunction.
In the present case, when the respondent adopted the mark JAIN JEWELLERS fo his office at Rajguru Market, the partners of the applicant,
Manoj Kumar and his wife were directors and admittedly have retired only in 2007. In these circumstances, it would not be in the interest of justice to
grant stay when it is not possible to rule out the plea of the respondent that the applicant was aware of the adoption of the mark and further it is clear
that both Manoj Kumar and Vinod Kumar both the sons of Arjun Dev and Nakul Dev and both had been carrying on business one at Rajguru Market
and the other at Gandhi Chowk and there has been no opposition to each other until the inauguration of the applicants showroom at Rajguru Market
near the respondents showroom. This is not a case where grant of stay is warranted. Therefore, the Miscellaneous Petition No. 72 of 2011 is
dismissed. We are of the opinion that the parties to the proceedings being relatives should agree to resolve the matter amicably before the main
petition is taken up for final hearing. The matter may be amicably resolved through a private mediation or the parties can approach Intellectual
Property Appellate Board (IPAB) for referring to mediation.