: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.120 OF 2008 WITH CIVIL APPLICATION NO.155 OF 2008 IN CIVIL SUIT NO.5 OF 2007 Mrs.Vrinda Narendra Joshi ....Appellant V/s. Kusmy Sales Corporation & Ors. ....Respondents Mr.Venkatesh Dhond with Mr.Utkarsha Tewari i/b M/s.Shantilal & Co. for the Appellant. Mr.S.M. Gorwadkar for Respondent Nos.1 to 3. CORAM : S.J. VAZIFDAR, J. DATED : 25TH APRIL, 2008. P.C. : 1. Admit and heard finally. 2. Both counsel agree that the question of the Plaintiff’s case of passing of has not been considered. The mere fact that a mark is registered would not defeat the case of passing of. 3. Normally it would not be necessary to remand the matter. The question ought to be tried by the Appeal Court. However several documents are being sought to be relied upon at this stage in support of : 2 : the case of passing of. 4. In the circumstances, the impugned order is set aside and the matter is remanded for reconsideration. The parties shall be at liberty to file the additional documents. Liberty to the parties to apply to the trial Court for early date after the pleadings are complete. 5. Mr.Dhond contended that the complaints are made by the Respondents to various authorities including F.D.A. contending that the effect of the impugned order is that the Appellant is not entitled to use the mark. It is clarified that the impugned order per-se does not do any such thing. If the Defendants want to restrain the Plaintiff from using the said mark, it is for the Defendants to adopt appropriate proceedings. All the contentions of the parties are kept open. The matter shall be decided without being influenced by the impugned order.