Delhi High Court
Sailor Sales & Ors. vs Mr. Harish Kumar on 1 December, 2021
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (COMM) 85/2021
SAILOR SALES & ORS. ..... Appellants
Through Mr. A.P Jyothish, Advocate.
versus
MR. HARISH KUMAR ..... Respondent
Through Mr. Ashok Goyal, Advocate.
% Date of Decision: 01st December, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
JUDGMENT
MANMOHAN, J: (Oral)
1. Present appeal has been filed challenging the interim injunction order
granted in favour of the respondent by the learned District Judge
(Commercial Court)-02 in CS(COMM) 494/2019 vide order dated 16th
December, 2020.
2. Learned counsel for the appellants states that the learned District
Judge failed to appreciate the fact that both the parties were doing business
together since the beginning and both the entities, M/s Smitz Polytex and
Smitz Marketing, ran smoothly between 2007 and 2015. He states that as
both the entities were doing a joint business, the adoption and use of the
mark SMITZ and their use of the trading name was known to all including
the respondent-plaintiff. He also states that the appellant No.3 is the prior
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user of the mark SMITZ, as appellant No.3 designed and adopted the mark
in 1999. He points out that in 2015, when the respondent owed a huge
amount to the appellants, the respondent with a dishonest intent decided to
separate their business. He undertakes that the appellants shall not use the
mark INDIGO.
3. Per contra, learned counsel for respondent states that appellants' use
of mark SMITZ is dishonest. He states that in the past the respondent had
permitted the appellants to use the mark SMITZ as the appellants were
supplying all its goods to the respondent-plaintiff.
4. Having heard learned counsel for the parties, this Court finds that the
substratum of the impugned Trial Court order is that defendant No.3's
application for registration of trade mark/logo "SMITZ" under no.2948568
in Class 23 and under no.2948570 in class 35 were rejected by the Registrar
of Trade Mark vide order dated 31st January, 2019. During the hearing, it is
an admitted position that the said Trade Mark applications pertain to the
trade mark "INDIGO" and not "SMITZ".
5. Further, it is an admitted position that the appellants had been using
the trade name M/s Smitz Polytex between 2007 and 2014 to the knowledge
of the respondent-plaintiff.
6. Keeping in view the aforesaid, the impugned order dated 16th
December, 2020 is set aside.
7. At this stage, learned counsel for the respondent states that the
respondent would be satisfied in the event the Trial Court is directed to
dispose of the suit filed by it within a strict time frame. Accordingly, the
present appeal is disposed of with a direction to the Trial Court to decide the
suit filed by plaintiff/respondent as expeditiously as possible, preferably,
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within six months. Needless to state, the Trial Court should decide the
matter on its own merit uninfluenced by any observation made by this Court.
The rights and contentions of all the parties are left open.
MANMOHAN, J
NAVIN CHAWLA, J
DECEMBER 1, 2021
AS
Signature Not Verified
Digitally Signed
Signing Date:02.12.2021
20:59:30
