1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. APPEAL NO.552 OF 2007 IN NOTICE OF MOTION NO.877 OF 2003 IN SUIT NO.806 OF 2003 1. Abdul Sattar & anr. Appellants vs. M/s.Rails Engineering Works Respondents Mr.S.M.Sakhardande with Ms.S.S.Deodhar for the Appellants. Dr.V.V.Tulzapurkar, Senior Advocate with Mr.Sandeep Parekh, Ms.Leena Adhvaryu, Mr.Nikhil Dhond i/b.M/s.Pravin Mehta & Mithi & Co. for the Respondents. CORAM : DR.S.RADHAKRISHNAN & ANOOP V. MOHTA,JJ. DATED : 27th February, 2008 P.C. Heard the learned counsel for the Appellants and the learned senior counsel for the Respondents. 2. This Appeal is against an interlocutory order granted by the learned Single Judge dated 22nd February, 2007 in Notice of Motion No.877/2003 confirming the earlier ad-interim order granted on 24th March, 2006. 3. Mr.Sakhardande, the learned counsel for the Appellants sought to contend that his client Abdul Sattar was using the mark "PILOT" since the year 1968 as a trade name in the name of M/s.PILOT GAS CUTTING 2 NOZZLES MANUFACTURING CO. It is the contention of the Appellants that the Appellants have been using the said trade mark "PILOT" since 1968 to 1982 when the said Company was formed into proprietorship under Abdul Sattar in the name of Pilot Nozzles Company. In that behalf, the following observation of the learned Single Judge would amplify the entire picture: ". Perusal of the above paragraph shows that the Defendants state that they are using the word mark since 1968 in the name of M/s.Pilot Gas Cutting Nozzles Manufacturing Co., but nowhere in the Affidavit they disclosed as to whether that was the Company registered under the Companies Act, whether it was partnership firm or whether it was proprietary concern. Then they state that in 1982 that Company was reconstituted under the proprietorship of Abdul Sattar in the name of M/s.Pilot Nozzles Co. However it was done by what document it was done. What was the procedure adopted are not explained. Therefore, the Defendants themselves who were carrying on business as proprietary concern, cannot take advantage of alleged use of word mark since 1968. There is no material produced by the Defendants to establish their connection with M/s.Pilot Gas Cutting Nozzles Manufacturing Co. The first occasion the defendants had to make a claim in respect of user of the word mark was when they applied for registration of the word mark. In that application, the Defendants themselves voluntarily claim that they are using the word mark from 1st April, 1982 really speaking, it was the document of the Defendants, therefore, it was for the Defendants to produce that documents because they were relying on the fact that they had applied for Registration of the word mark. The Plaintiffs have produced copy of that application. Once the Plaintiffs produce that documents on record. It was for the Defendants to explain why they did not claim that they are using the word mark since 1968. There is no explanation given by the Defendants. In my opinion in the absence of any explanation being given by the Defendants 3 as to why they claim in their application for Registration of word mark that they are using the word mark from 1st April, 1982, the claim that they are using the mark any time before 1982 cannot be accepted. Therefore, the claim of the Defendants that they are using the word mark from 1968 is rejected then there is hardly any defence raised by the Defendants and therefore, in my opinion, the plaintiffs would be entitled to have ad-interim order confirmed which is already granted by the Court. Ad-interim order dated 24th March, 2006 is confirmed. Notice of Motion is disposed off." 4. Mr.Sakhardande, the learned counsel for the Appellants is unable to point out with regard to M/s.Pilot Gas Cutting Nozzles Manufacturing Co. i.e. whether it was a partnership firm or whether it was a proprietary concern or whether it was incorporated as a private company. No details are forthcoming. Under these circumstances, there is no error or illegality in that part of the Order of the learned Single Judge refusing to give any credence to the user of the mark "PILOT" since 1982. It is relevant to note that the Appellants themselves had applied for registration of trade mark "PILOT" on 3rd September 1982. There is no dispute that the Respondents had a registered trade mark "PILOT" since 18.04.1979. 5. Mr.Sakhardande, the learned counsel for the Appellants, sought to argue apart from the above, the Respondents have acquiesced with regard to the user of the mark "PILOT" by the Appellants ever since 1982. 4 However, on perusal of the Affidavit in Support of the Notice of Motion, we do not find that any such plea has taken up or any details given as to the manner of such acquiescence. The learned senior counsel Mr.Tulzapurkar countered saying that the issue of acquiescence was not even pleaded or argued before the learned Single Judge. In any case the above issue has no substance. We do not find any error or illegality in the impugned order. The Appeal is totally devoid of any substance and the same is dismissed. Having regard to the facts and circumstances of the case, hearing of the above Suit No.806/2003 is expedited. [ANOOP [ANOOP [ANOOP V. MOHTA,J.] V. MOHTA,J.] V. MOHTA,J.] [DR.S.RADHAKRISHNAN, [DR.S.RADHAKRISHNAN, [DR.S.RADHAKRISHNAN, J.] J.] J.]