FAO No.2723 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.2723 of 2008 (O&M) DATE OF DECISION: 08.11.2010 **** Amrit Enterprises Limited, Old Dhakanshu Kalan, Chandigarh Road, Rajpura (Punjab) . . . . Appellant Vs. M/s G.S. Rice & General Mills, Tarn Taran Road, Amritsar and another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Arun Palli, Sr. Advocate with Mr.Tushar Sharma, Advocate for the appellant. Mr.Arun Jain, Sr. Advocate with Mr.Amit Jain, Advocate for the respondents. **** RAKESH KUMAR JAIN J. (ORAL) This appeal is directed against the order dated 31.5.2008 passed by Additional District Judge, Amritsar on an application filed under Order 39 Rules 1 & 2 of the Code of Civil Procedure, 1908 (for short ‘CPC’) for temporary injunction to restrain the defendant/appellant herein from selling of the goods, namely, rice under the trade name “Gagan”. The Plaintiffs filed suit for the infringement of their trade name “Gagan” registered vide certificate issued on 21.08.1980 under the Trade & Merchandise Marks Act, 1958 (for short “the Act”) for selling the rice of all kinds. The extract from the register of Copyright Office shows that the title of the work is “Gagan” and it is given to Harbhajan Singh Arora and Barinder Kaur. The learned Court below prima facie found that the appellant-Amrit Banaspati Limited is selling Ghee in the trade name of “Gagan” on the basis of a registered Trademark but do not possess Trademark of “Gagan” for the purpose of selling rice. The learned trial FAO No.2723 of 2008 (O&M) -2- Court, thus, after considering the prima facie evidence available on record has granted injunction to the plaintiffs by observing thus: - “From the evidence on record it is proved that the plaintiffs have got the trade name registered in their names for the sale of rice of all kinds. It is not for the sale of rice in a particular area only. On the other hand the defendant has not got this trade name registered for the sale of rice. The plaintiffs as such have a prima facie case. The company M/s Amrit Banaspati Limited has a great name for selling the Ghee in the trade name of Gagan. There is lot of advertisements for the sale of Gagan Ghee. The slogan KHAO GAGAN RAHO MAGAN is also very popular. Now the defendants have started selling rice under the same trade name, on behalf of the parent company. It is definitely affected the market of the plaintiffs. The defendant is unauthorisedly using this trade name for the sale of rice. The balance of convenience, as such, lies in favour of the plaintiffs and the plaintiffs will definitely suffer an irreparable loss in case the defendant is allowed to sell the rice under the trade name “Gagan” for itself or on behalf of any other concern or through any other means. In view of the reasons recorded above, the application is allowed and the defendant is restrained during the pendency of the present suit from selling rice under the trade name “Gagan” for itself or on behalf of any other concern or through any other means. This order shall have no affect on the merits of the main case in any manner.” FAO No.2723 of 2008 (O&M) -3- Aggrieved against the aforesaid order, defendant has filed the present appeal in which learned counsel for the appellant has very fairly conceded that except for the Trademark dated 26.1.1974, which is meant for hydrogenated vegetable oil & edible oil, there is no other Trademark with the appellant for the purpose of selling rice under the brand name “Gagan”. After considering the record and concession made by learned counsel for the appellant, I do not find any merit in the present appeal because the learned Court below has rightly exercised the jurisdiction vested in it for protecting the rights of the plaintiffs from infringement of their Trademark by the defendants which is phonetically the same. No other submission has been made. In view of the above, present appeal is found to be devoid of any merit and the same is hereby dismissed. It is, however, made clear that any observation made hereinabove shall not be construed to be an expression on the merits of the case. (RAKESH KUMAR JAIN) NOVEMBER 08, 2010 JUDGE Vivek