Prakram Singh Chaudhary vs P.C. Jewellers Pvt. Ltd. & Anr.
2012 Latest Caselaw 5702 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         Date of Decision: 21 .09.2012

%      FAO (OS) No. 465/2012

       PRAKRAM SINGH CHAUDHARY                ..... Appellant
                   Through: Mr. B.P. Sharma, Advocate

                       versus

       P.C. JEWELLERS PVT. LTD. & ANR.        .....Respondents
                      Through: Mr. M.L. Mangla, Mr. Manish
                                Singhal and Mr. Ankit Mangla,
                                Advocates
       CORAM:
       HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
       HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (Oral)

C.M. No.16725/2012 (Exemption)

Exemption allowed, subject to all just exceptions.

FAO (OS) No. 465/2012 & C.M. Nos.16726/2012 & 16727/2012

1. The appellant has preferred the present appeal to assail the order dated

21.05.2012 passed by the learned Single Judge, whereby the interim

application being I.A. No.6623/2011 preferred under Order 39 Rule 1 and 2

CPC by the respondent/plaintiff has been allowed and I.A. No.9722/2012

preferred by the appellant/defendant under Order 39 Rule 4 CPC has been

dismissed in C.S. (OS) No.991/2012.

2. At the outset, we may note that the present appeal has been preferred

belatedly. According to the applicant, there is a delay of 100 days in filing

the appeal. The only reason furnished in the application is that the appellant

had a wedding in the family due to which he could not contact his counsel in

Delhi. This reason does not appeal to us, as we cannot comprehend that for

a wedding in the family, the appellant was tied up for 100 days or so. The

period of limitation is prescribed by the law, keeping in mind the normal

course of human conduct. The period of limitation, as prescribed, takes into

account all such contingencies. Even if there are any unforeseen and

unavoidable circumstances, which prevent a party from preferring the

appellate remedy within the period of limitation, the appellant is obliged to

disclose sufficient cause to explain the delay. Apart from making a bald

statement about some marriage, no further details are furnished about whose

wedding it was; how is the appellant is related to the person who got

married; when and where did the wedding take place, so on and so forth.

Not only that, the present appeal has been preferred on the basis of typed

copy of the impugned order. The certified copy of the impugned order is not

on record. On our query from the learned counsel, he states that the certified

copy has till date not been applied for. This would mean that the delay is, in

fact, continuing even till date. On this short ground, the appeal is liable to be

dismissed. However, we have heard learned counsel for the appellant on

merits as well and even on merits, we find that the appeal is liable to be

dismissed.

3. The appellant has not filed before this Court the pleadings in the said

suit. Only selective documents have been placed on record by the appellant.

We are, therefore, left to gather the pleadings and facts only from the

impugned order.

4. A perusal of the impugned order shows that the respondent/plaintiff

preferred the suit in question to seek permanent injunction against

infringement of the respondent's registered trademark, damages etc. The

case of the respondent is that they are carrying on jewellery business using

the trademark P.C. Jewellers. Earlier, the business was being carried on by

them under the name and style of P. Chand Jewellers Pvt. Ltd. However,

subsequently, this name was changed to P.C. Jewellers Pvt. Ltd. with effect

from 16.10.2007. According to the appellant, the learned Single Judge has

wrongly noted the date of change of name as 16.10.2007 and that the change

of name had taken place only in the year 2009. However, no material

evidence has been placed on record by the appellant to even, prima facie,

substantiate this plea. Therefore, this submission of the appellant cannot be

accepted.

5. The case of the respondent is that it is an old and established user of

the name "P.C. Group". The respondents state that respondent no.2 started a

retail outlet of precious metals including gold and silver jewellery and is

popularly known as P.C. Jewellerywala in the jewellery business. Later on,

respondent no.2 extended the business to diamond and diamond jewellery.

The respondents further state that they adopted the trademark/trade name in

the year 1981. Respondent no.1 is the proprietor of the registered trademark

PC Jewellers vide registration no.1354273 in respect of all kinds of

jewellery. Being the proprietor of the trademark PC Jewellers, the

respondents claim the exclusive right in the use of the said trademark in

respect of jewellery business throughout the country to the exclusion of all

others.

6. The case of the respondent was that they had opened 17 showrooms

across India including in Delhi, Noida, Ghaziabad, Lucknow, Dehradun,

Gurgaon, Bhilwara etc. under the trademark PC Jewellers. The respondents

have given their sales figures as also the amount spent by them on

advertising their trademark, which was stated to be more than Rs.9 crores.

7. On the other hand, the appellant had been carrying on business in

textiles under the trademark PC Textiles. They claimed to have started their

business in jewellery under the trademark PC Jewellers in the year 2007. It

is stated that the respondent no.1 opened its showroom at Bhilwara in the last

week of December 2010. The appellant approached the District Judge,

Bhilwara to seek an injunction order against the respondent for use of the

mark PC Jewellers. However, no injunction was granted against the

respondent.

8. It appears that an ad-interim ex-parte order of injunction was passed

against the appellant on 27.04.2011. The learned Single Judge while

confirming the said order observed that since the respondents had obtained

registration of their trademark PC Jewellers in the year 2005, whereas the

appellant appears to have started using the same trademark in respect of its

business in jewellery in the year 2007, the said user by the appellant would

tantamount to infringement of the respondents trademark. Consequently,

learned single judge dismissed the appellants application under Order 39

Rule 4 CPC.

9. The submission of learned counsel for the appellant is founded upon

sections 33 and 34 of the Trade Marks Act, 1999 (the Act). In our view,

neither of these provisions comes to the aid of the appellant. Section 33 of

the Act, which deals with the effect of acquiescence, opens with the words

"Where the proprietor of an earlier trade mark has acquiesced for a

continuous period of five years in the use of a registered trade mark, being

aware of that use, he shall no longer be entitled on the basis of that earlier

trade mark .... .... ....".

10. In the present case, from the facts narrated herein above it appears that

the aforesaid conditions are not satisfied. The appellant does not appear to

have set up a case founded upon section 33 before the learned Single Judge

and it appears the said provision was not even relied upon before him. It is

for this reason that there is no mention of either section 33 or section 34 in

the impugned order. As aforesaid, the appellant has not placed on record

either a copy of the plaint, or even his own written statement/reply to the

interim application/application under Order 39 Rule 4.

11. Section 34 also does not assist the appellants case since the said

provision was also not relied upon before the learned Single Judge.

Moreover, the user of the trademark PC Jewellers by the appellant in respect

of jewellery items started only in the year 2007, i.e. after the registration of

the said mark in favour of the respondent in the year 2005. Earlier, the use

by the appellant was in respect of the trademark/trade name PC Textiles and

that too in relation to the business in textiles. The said user of PC Textiles is

not relevant and cannot be equated with the user of the mark of PC Jewellers

and, it appears, that the injunction has been granted in respect of PC

Jewellers and not PC Textiles.

12. The appellant cannot claim to have any vested right to adopt and use

the trademark PC Jewellers in the facts as they appear from the impugned

order. Even the documents sought to be relied upon by the appellant show

that the user of the mark PC Jewellers by the appellant started only in the

year 2007, and not prior to that.

13. In the face of the facts and circumstances, the registered mark of the

respondent no.1 i.e. PC Jewellers in respect of jewellery items deserves to be

protected, and we find no reason to interfere with the impugned order.

14. Dismissed with costs of Rs.20,000/- to be paid to the respondent

within two weeks.

VIPIN SANGHI, J

SANJAY KISHAN KAUL, J SEPTEMBER 21, 2012 sr