IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 843 OF 2009 IN SUIT NO. 520 OF 2009 Hatim Glazing & Clading (P) Ltd. ..... ..... ...Plaintiff V/s Bruhani Traders..... ..... ..... ...Defendant. Mr.Vallabh Sawana with Mr.Sakhardande, Adv. for the plaintiff. Mr.Bhagwati Trivedi, Usha A. & Pranjal Dave, Adv. for the defendants. CORAM: A.P.DESHPANDE, J. 21st April, 2009. PC: The plaintiff has filed present suit alleging an infringement of the trade mark “Mi-Feng”. According to the plaintiff the said product is manufactured by Chinese company and the plaintiff is importing products and selling the same in India. The plaintiff claims to be authorized distributor/dealer of the said company. The plaintiff has also alleged that the defendant is selling the same product with identical name, description, colour combination and all other trappings. Thus the plaintiff has prayed injunction against the defendant from passing of goods by defendant as that of the plaintiff. 2. Per contra, it is the case of the defendant that the defendant is also purchasing the same product which is being sold by the plaintiff 1 either from the manufacturer from China and/or from local market and thus product which is being sold by the plaintiff and the defendant is the same product. The plaintiff has failed to place on record any document where under the manufacturer has authorized the plaintiff to sale the product in India. It is stated in para 3 of the plaint that with prior permission of the Chinese company the plaintiff made an appliation on 27.9.07 which appears to have been received in the office of the authority on 15.10.07. It had applied for registration of the said trade mark under clause 17 of Schedule 4 of the Trade Marks Act and the rules made thereunder. Perusal of the application clearly reveals that the plaintiff has stated against the column user – proposed to be used. It is thus clear that in October, 2007 the plaintiff had described trade mark as proposed to be used by the plaintiff. The plaintiff has tried to contend in the suit that some time prior to 27.9.07 the plaintiff had started use of the trade mark and has acquired rights in the said trade mark. The case of the plaintiff stands negated from the plaintiff's own declaration made in the application seeking registration of trade mark dated 27.9.07. Prima facie I am of the clear view that the plaintiff has failed to make out a case that the plaintiff is proprietor or owner of the mark “Mi- Feng”. The plaintiff has also failed to establish that the plaintiff is using the said mark since prior to the use of the same by the defendant. Having regard to the fact that both the plaintiff and defendant are selling the same product manufactured by Chinese 2 company in the absence of any authorization from the manufacturer plaintiff cannot claim any right either in regard to infringement of trade mark or for an action of passing of goods by the defendant. In the result there being no merit the notice of motion stands dismissed. 21.4.2009. 3