[Cites 54, Cited by 0]
Gujarat High Court
Mr. Anil Gopalji Thacker vs Mr. Davda Jaydeepkumar Jagdishchandra on 16 March, 2026
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Reserved On : 16/12/2025
Pronounced On : 16/03/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 207 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/APPEAL FROM ORDER NO. 207 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No
✔
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MR. ANIL GOPALJI THACKER
Versus
MR. DAVDA JAYDEEPKUMAR JAGDISHCHANDRA
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Appearance:
MR HARSHIT TOLIA, SENIOR ADVOCATE WITH MR PRATIK K
CHAUDHARY(8359) for the Appellants
MR KAMAL B. TRIVEDI, SENIOR ADVOCATE with MR SHIVANG A
THACKER(7424) for the Respondent
MR AR THACKER(888) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
CAV JUDGMENT
1. The present Appeal from Order under Order XLIII Rule
1(r) of the Code of Civil Procedure, 1908 (hereinafter referred
to as "the Code") is directed against the order dated
12.08.2025 passed by the learned 8th Additional District Judge,
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Bhuj-Kutch below Exh.5 in Trademark Suit No.1 of 2025
instituted by the appellant. By the said order, the learned trial
Court was pleased to reject the application for interim
injunction preferred by the appellant and consequently,
vacated the ex-parte ad-interim injunction granted earlier on
15.05.2025.
2. The appellant herein is the original plaintiff, whereas the
respondent herein is the original defendant in the aforesaid
suit. For the sake of convenience and to avoid any confusion,
the parties shall hereinafter be referred to in accordance with
their original status before the trial Court, i.e., as plaintiff and
defendant.
Case of the plaintiff :
3. The case of the plaintiff, as set out in the plaint, is that
the plaintiff is the adopter, proprietor and user of the device
mark / trademark and is inter alia engaged in the
business of construction and renovation of buildings,
construction and repair works, residential and commercial
building construction, construction of hotels, restaurants and
resorts, as well as land development, since the year 2015. It is
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stated that the plaintiff initially commenced business activities
at Deesa in District Banaskantha, which have subsequently
expanded to the District of Kutch.
3.1 It is further averred that in the year 2015, a partnership
firm was constituted in the name and style of "Shree
Kshetrapal Agritech". Thereafter, in the year 2016, a private
limited company, namely M/s. Shree Kshetrapal Oil Refinery
Pvt. Ltd., came to be incorporated. Subsequently, other
entities, namely Shree Kshetrapal Infrastructure, Shree
Kshetrapal Building Materials and Shree Kshetrapal Infra
LLP, were also formed by the plaintiff.
3.2 According to the plaintiff, in the course of the aforesaid
business activities, several real estate projects have been
launched in and around Bhuj-Kutch, including Shree
Kshetrapal Prime, Shree Kshetrapal Arcade, Shree Kshetrapal
Commercial and Industrial Park, Shree Kshetrapal Residency,
Shree Kshetrapal Landmark, Shree Kshetrapal Epitome,
Shree Kshetrapal Infinity, Shree Kshetrapal Square-1, Shree
Kshetrapal Square-2 and Shree Kshetrapal Icon.
3.3 It is the further case of the plaintiff that, with a view to
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secure protection of its trademark / trade name "Shree
Kshetrapal", an application bearing No.6138925 came to be
filed under the provisions of the Trade Marks Act, 1999 for
registration of the device mark under Class 37, and
the said mark has been duly registered by the Registrar of
Trade Marks. It is also stated that another application bearing
No.6981533 has been filed for registration of the word mark
"Shree Kshetrapal", which is presently pending adjudication.
3.4 On the strength of the aforesaid registration of the
device mark , the plaintiff claims entitlement to
protect the said trademark and restrain any infringement
thereof. According to the plaintiff, the defendant has
commenced business activities in May, 2025 under the trade
name "Kshetrapal Construction", which, according to the
plaintiff, is structurally, phonetically and visually similar and
deceptively identical to the plaintiff's trademark "Shree
Kshetrapal". It is further alleged that upon making inquiries,
the plaintiff came to learn that the defendant has also filed an
application for registration of the trademark "Kshetrapal
Construction", claiming use thereof since 05.01.2014.
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3.5 In the aforesaid circumstances, the plaintiff instituted
Trademark Suit No.1 of 2025 before the learned Civil Court at
Bhuj-Kutch, seeking, inter alia, the following reliefs:
"A. The defendant, their successors, servants, agents,
dealers, stockiest and distributors be restrained
permanently and perpetually from manufacturing,
marketing, advertising, selling and/or providing any
services under the mark "KSHETRAPAL
CONSTRUCTION" and such other Trademark having
identical and/or deceptively similar to the plaintiff's
Trademark "SHREE KSHETRAPAL" and be further
restrained from committing act of infringement of the
registered trademark and passing-off by
selling/providing their services under the mark
"KSHETRAPAL CONSTRUCTION" as that of plaintiff's
Trademark "SHREE KSHETRAPAL" and be restrained to
claiming any rights, titles or interests in the mark
"KSHETRAPAL CONSTRUCTION".
B. A decree may be passed against the defendant and
their properties which can be executed against the
defendant and in favour of the plaintiff for the
declaration that the plaintiff is the only proprietor of the
Trademark "SHREE KSHETRAPAL" and the plaintiff is
only entitled to provide his services under the
Trademark "SHREE KSHETRAPAL".
C. The defendant may be ordered to produce accounts
for the sale of its services under the mark
"KSHETRAPAL CONSTRUCTION" and be directed to pay
the profits whatsoever derived from sale of such services
under the illegal use of mark "KSHETRAPAL
CONSTRUCTION" with interest @18% from the date of
filing of the suit till realization. The Hon'ble Court be
pleased to order the defendant to pay the damages on
basis of reputation and goodwill which is ruined due to
illegal use of the mark "KSHETRAPAL
CONSTRUCTION", as may be deemed fit and proper in
the interest of justice.
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D. That the defendant be restrained from disposing of or
dealing with his asset which may adversely affect the
plaintiff's ability to recover damages, cost or other
pecuniary remedies which may be finally awarded by
this Hon'ble court to the Plaintiff.
E. The defendant be restrained from interfering in any
manner whatsoever with business of the plaintiff, their
agents, servants, distributors, family and retailers from
manufacturing, marketing, selling and advertising their
services by using mark "KSHETRAPAL
CONSTRUCTION".
F. Any other and further relief may be granted looking to
the facts and circumstances of the case deemed fit, just
and proper in the interest of justice.
G. A heavy exemplary cost of the suit may be awarded
to the plaintiff."
3.1 Along with the plaint, an application Exh.5 under Order
39 Rule 1 and 2 of the Code was also filed seeking, inter alia,
interim relief, which read, thus;
"A. Till the pendency and final disposal of the suit, the
defendant, their successors, servants, agents, dealers,
stockiest and distributors be restrained by an order of
ad-interim and temporary and/or Ex-parte injunction
from manufacturing, marketing, advertising and selling
and/or offer for sale their services/products under the
impugned mark "KSHETRAPAL CONSTRUCTION".
B. The defendant, their directors, successors, servants,
agents, dealers, stockiest and distributors be restrained
till final hearing and disposal of the suit from providing
their goods/products/services under the mark
"KSHETRAPAL CONSTRUCTION" and/or such other
mark being identically, phonetically and/or confusingly
and/or deceptively similar to the plaintiff's trademark
"SHREE KSHETRAPAL" and be further restrained from
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committing the act of infringement as well as passing off
the plaintiff's services /products under the impugned
Trademark and may further be restrained from claiming
any rights, titles or interest in the said Trademark.
C. The Hon'ble Court may further be pleased to restrain
the defendant from causing interference and obstruction
in any way, interfering with the sale, marketing, offer for
sale in any manner, which may adversely affect plaintiff's
ability to recover damages, costs or other pecuniary
remedies which may be finally awarded by this Hon'ble
court to the Plaintiff.
D. For ad-interim and interim relief of prayer (C), this
Hon'ble Court be pleased to appoint the Court Receiver
or such other person as this Hon'ble Court may deem fit
and proper, with all powers under Order XL of the Code
of Civil Procedure, 1908, to forcibly enter/visit any
premises of the defendant at any time of the day or
night, on any day, including on Sundays and holidays,
without prior notice, with police help, if so required, and
for that purpose to break open any lock or latch or door
and to search, collect, seize, destroy, erase and/or store
any goods, stationery, letterheads, signage, reprographic
material, packaging, signboards, hoardings, labels
and/or other material for advertising, selling or
marketing any goods/services and/or other material
featuring bearing the trademark or "KSHETRAPAL
CONSTRUCTION".
E. Any other and further relief as may be deemed just
and proper looking to the facts and circumstances of the
case be granted in the interest of justice.
F. Cost of this application may kindly be awarded to the
plaintiff."
4. The learned trial Court, upon considering the application
for interim relief, was pleased to grant an ex-parte ad-interim
injunction in favour of the plaintiff by order dated 15.05.2025
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against the defendant. However, upon service of notice of the
said order, the defendant appeared and filed an application
under Order XXXIX Rule 4 of the Code, seeking vacating of
the said ex-parte ad-interim injunction. The defendant also
filed a written statement to the plaint as well as a reply
opposing the application for interim injunction.
Case of the Defendant :
5. The case of the defendant, as emerging from the written
statement and the reply to the interim application, is that the
plaintiff has suppressed material facts and made misleading
statements on oath. According to the defendant, the
defendant has been carrying on the business of construction
under the trade name "Kshetrapal Construction" since the
year 2014.
5.1 It is further the case of the defendant that from the year
2017 till April, 2025, the plaintiff and the defendant were
business partners and had jointly undertaken several
construction projects, wherein the trade name "Kshetrapal"
was used by them jointly. It is also alleged that the plaintiff
has committed a major suppression with regard to the
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proceedings before the Registrar of Trade Marks. According
to the defendant, while seeking registration of the device
mark , the Registrar had raised objections under
Section 9(1)(b) and Section 11 of the Trade Marks Act, 1999,
to which the plaintiff had specifically stated that it was
seeking registration only of the device mark. According to the
defendant, this crucial aspect has not been disclosed in the
plaint.
5.2 It is further contended by the defendant that while
replying to the objection under Section 11 of the Trade Marks
Act, the plaintiff had stated before the Registrar that the
trademark had been adopted in a special and artistic manner,
and therefore the mark "Shree Kshetrapal" was visually
distinct. In such circumstances, according to the defendant,
the plaintiff is precluded from claiming any exclusive right
over the individual word forming part of the device mark. The
defendant has also contended that the plaintiff has not
produced any sale deeds or development permissions, which
would demonstrate that the projects in question were
undertaken jointly by the plaintiff and the defendant and that
the word "Kshetrapal" was being used by them jointly in the
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course of such business activities.
5.3 It is further the case of the defendant that the defendant
has been engaged in the business of construction since the
year 2014 and has completed several projects by using the
mark "Kshetrapal". The defendant has also obtained a PAN
card in the name of the firm "Kshetrapal Construction" on
29.05.2021. According to the defendant, several projects were
undertaken jointly by the plaintiff and the defendant,
including Shree Kshetrapal Square-1, Shree Kshetrapal
Square-2, Kshetrapal Reyansh Avenue and Reyansh
Kshetrapal The Palms. The defendant has also stated that an
application for registration of its device mark has
been filed on 28.04.2025, being Trademark Application
No.6980721 under Class 37, claiming use thereof since
05.01.2014, which application is presently pending
adjudication.
6. The learned trial Court, after considering the pleadings
of the parties and the documents produced on record, by its
order dated 12.08.2025 passed below Exh.5 in Trademark Suit
No.1 of 2025, was pleased to reject the application at Exh.5
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for interim injunction and vacate the ex-parte ad-interim relief
granted earlier.
7. Being aggrieved and dissatisfied with the aforesaid order
passed by the learned trial Court, the plaintiff has approached
this Court by way of the present Appeal from Order, seeking,
inter alia, interim relief in terms of the application at Exh.5.
8. Heard learned Senior Advocate Mr.Harshit Tolia with
learned advocate Mr.Pratik Chaudhary for the appellant -
plaintiff and learned Senior Advocate Mr.Kamal B. Trivedi
with learned advocate Mr.Shivang Thacker for the respondent
- defendant.
9. Learned Senior Advocate Mr.Harshit Tolia for the
plaintiff, while assailing the impugned order, has made the
following submissions :
9.1 It is contended that the learned trial Court has failed to
properly appreciate the evidence on record in its true letter
and spirit and has also failed to consider the relevant
statutory provisions and the settled principles of law
governing the aspects of prior user, rights of a registered
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proprietor, similarity of trademarks and public policy.
According to the plaintiff, such failure has resulted in a
serious miscarriage of justice.
9.2 It is further urged that the learned trial Court has
committed a material error in holding that the plaintiff has
failed to establish prior use of the trademark "Shree
Kshetrapal" since the year 2015, without properly
appreciating the evidence on record. It is submitted that the
plaintiff's earlier firm, namely Shri Shetrapal Agritech, was
not engaged in the construction business and that the spelling
of the mark adopted by the plaintiff was different. The plaintiff
contends that the findings recorded by the trial Court in this
regard are erroneous and have resulted in miscarriage of
justice.
9.3 It is also contended that the learned trial Court ought to
have appreciated that the plaintiff's firm came to be
established in the year 2015, and since then the trademarks
"Shree Kshetrapal" and "Shree Shetrapal", the essential
feature being the word "Kshetrapal", have been continuously
used by the plaintiff. Therefore, the finding recorded by the
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trial Court that the plaintiff failed to establish prior use of the
said mark is, according to the plaintiff, unsustainable in the
eye of law.
9.4 The plaintiff has further submitted that the learned trial
Court ought to have appreciated that since the year 2015, the
plaintiff has been engaged in various business activities, but
notwithstanding the change in the nature of business, the
word "Kshetrapal" has remained a constant feature in the
plaintiff's trade name. In such circumstances, according to the
plaintiff, the trial Court ought not to have adopted a hyper-
technical approach by drawing a distinction between the
spellings "Kshetrapal" and "Shetrapal", particularly when the
businesses were related.
9.5 It is also contended that the learned trial Court has
erred in concluding that the plaintiff had suppressed material
facts by not disclosing the alleged joint business activity with
the defendant. According to the plaintiff, the defendant was
merely a minority investor in specific projects, namely Shree
Kshetrapal Square-1 and Shree Kshetrapal Square-2, and was
never a co-owner or proprietor of the trademark "Shree
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Kshetrapal". It is submitted that there existed no partnership
agreement between the plaintiff and the defendant, nor did
the defendant ever assert any claim of ownership over the
trademark "Kshetrapal" while acting as an investor in the
schemes floated by the plaintiff. In such circumstances, the
trial Court ought to have appreciated that the trademark
"Shree Kshetrapal" is the trade name of the plaintiff, and that
the defendant subsequently started using the word
"Kshetrapal" for the schemes floated by him without the
permission or consent of the plaintiff and in an unauthorized
manner.
9.6 It is further contended that the plaintiff had sufficiently
established use of the trademark "Shree Kshetrapal" since the
year 2015 by producing ample documentary evidence on
record. However, the learned trial Court, according to the
plaintiff, has committed a serious error in not appreciating
such evidence in its proper perspective, which has resulted in
miscarriage of justice.
9.7 The plaintiff has also contended that the learned trial
Court ought to have appreciated the well-settled principle that
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registration of a trademark confers upon the proprietor an
exclusive right to its use, and that the use of a deceptively
similar mark, such as "Kshetrapal Construction", is likely to
cause confusion among the public. According to the plaintiff,
it is the prior adopter and user of the trademark "Shree
Kshetrapal", and the average consumer associates the word
"Kshetrapal" exclusively with the plaintiff and its entities. It is
therefore submitted that permitting the defendant to use the
impugned mark for its construction schemes would dilute the
plaintiff's trademark and would also cause confusion and
deception among the purchasing public, who may not be able
to distinguish the real estate schemes of the plaintiff from
those of the defendant. Hence, it is contended that the
impugned order passed by the trial Court is contrary to the
settled principles of law and deserves to be quashed and set
aside.
9.8 It is further contended that the learned trial Court has
attached undue significance to the alleged non-disclosure of
the fact that the defendant was associated with and was one
of the investors in certain schemes of the plaintiff. The trial
Court has, according to the plaintiff, erroneously
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characterized such non-disclosure as suppression of material
facts and relied upon the same as a ground to deny equitable
relief. According to the plaintiff, the dispute in the present
case pertains to trademark infringement and passing off, and
not to any partnership dispute between the parties. Therefore,
the non-disclosure of the defendant's role as a minority
investor cannot be treated as material suppression of facts so
as to disentitle the plaintiff from seeking interim relief.
9.9 Lastly, it is contended that the learned trial Court ought to
have appreciated that the plaintiff is the registered proprietor
of the trademark and has demonstrated a long history of use
of the mark "Kshetrapal". According to the plaintiff, it has
been clearly established that the defendant is using a
confusingly similar mark in the same line of business, and
therefore the order vacating the ad-interim relief and
rejecting the application at Exh.5 is unsustainable in law. It is
submitted that the balance of convenience lies in favour of the
plaintiff, and that in the absence of interim relief, the plaintiff
would suffer irreparable loss to its goodwill and reputation.
Hence, the plaintiff prays that the impugned order be quashed
and set aside and that the injunction as prayed for be granted
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in the interest of justice.
9.10 To substantiate the aforesaid submissions, learned
Senior Advocate Mr.Harshit Tolia has placed reliance on the
following authorities :
(1) Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia,
reported in (2004 3 SCC 90.
(2) Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai
Patel, reported in (2006) 8 SCC 726.
(3) Hindustan Pencils (P) Ltd. v. India Stationary Products
Co., reported in 1989 SCC Online Del 34.
(4) SIA Gems and Jewellery Pvt. Ltd. v. SIA Fashion,
reported in 2003 SCC Online Bom 498.
(5) Jagdish Sweets and Farsan v. Jagdish Foods Pvt. Ltd.,
reported in 2007 SCC Online Guj 32.
(6) Jagdish Gopal Kamath v. Lime & Chilli Hospitality
Services, reported in 2015 SCC Online Bom 531.
(7) Torrent Pharmaceuticals Ltd. v. Wockhardt Ltd.,
reported in (2018) 18 SCC 346.
(8) Kewal Ashokbhai Vasoya v. Suarabhakti Goods (P) Ltd.,
reported in 2022 SCC Online Bom 3335.
(9) Eduspark International (P) Ltd. v. Laxmi Publications (P)
Ltd., reported in 2023 SCC Online Del 2062.
(10) Marico Limited v. KLF Nirmal Pvt. Ltd., rendered in IA
(L) No.26759 of 2023 in COMMIP (L) Suit No.22293 of
2023 by the Bombay High Court.
(11) Nirav Nimmi Corporation v. Ashish Traders, rendered in
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AO No.9 of 2025 by this Court.
(12) Patel Field Marshal Agencies & Anr. v. P.M. Diesels
Limited & Anr., reported in (2018) 2 SCC 112.
(13) K.R. Chinna Krsihna Chaetiar v. Shri Ambal & Co.,
Madras & Anr., reported in (1969) 2 SCC 131.
(14) New Narbada Divya Jyoti Impex Trading by Divyan
Mahendra Singhvi v. Narmada Agrobase Limited,
rendered in Appeal from Order No.191 of 2025.
(15) Under Armour.,Inc v. Aditya Birla Fashion & Retail Ltd.,
rendered in CS (COMM) 41 of 2023 by the Delhi High
Court.
9.11 By making the aforesaid submissions, learned advocate
for the plaintiff urged this Court to allow the present Appeal
from Order.
10. Per contra, learned Senior Advocate Mr.Kamal Trivedi
for the defendant, while supporting the impugned order, has
made the following submissions :
10.1 On the other hand, the learned advocate appearing for
the defendant has supported the impugned order and
submitted that the learned trial Court was fully justified in
refusing the interim relief and in vacating the ad-interim
injunction, particularly on the ground of suppression of
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material facts and misleading statements made by the
plaintiff. According to the defendant, two material
suppressions have been committed by the plaintiff, namely: (i)
non-disclosure of the proceedings before the Registrar of
Trade Marks in connection with the plaintiff's application
bearing No.6138925 for registration of the device mark
, and (ii) non-disclosure of the joint business activities
of the plaintiff and the defendant in relation to the projects
Shree Kshetrapal Square-1 and Shree Kshetrapal Square-2.
10.2 It is submitted that the plaintiff had filed an application
bearing No.6138925 on 06.10.2023 for registration of the
device mark under Class 37, declaring the same as
"proposed to be used". However, in the plaint, the plaintiff has
asserted that the device mark / trademark "Shree Kshetrapal"
has been in use since 15.05.2015. It is therefore contended
that the plaintiff possesses registration only of a device mark,
and not of a solitary word or stand-alone mark "Kshetrapal".
The said registration, according to the defendant, pertains to
a composite device mark containing several features including
the words "Shree Kshetrapal", and therefore the mark is
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required to be considered as a whole and in its entirety. It is
further submitted that during the course of the registration
proceedings, objections were raised by the Registrar under
Section 9(1)(b) and Section 11 of the Trade Marks Act, 1999.
In response to such objections, the plaintiff had stated before
the Registrar that the mark was specifically and artistically
designed and that the plaintiff was claiming rights only over
the device mark. However, according to the defendant, these
crucial aspects have not been disclosed in the plaint and the
plaintiff has attempted to claim exclusive rights over the
solitary word "Kshetrapal", which is otherwise a non-
distinctive term and also the name of a deity. It is also
submitted that while replying to the objection under Section
11, the plaintiff had specifically stated that the mark "Shree
Kshetrapal" had been adopted in a particular artistic manner,
making it visually distinct. According to the defendant, the
suppression of these aspects relating to the objections under
Sections 9 and 11 constitutes suppression of material facts
going to the root of the matter, and therefore the learned trial
Court was justified in drawing an adverse inference against
the plaintiff.
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10.3 The defendant has further submitted that the plaintiff
has also suppressed the fact that the plaintiff and the
defendant were joint owners / investors / developers in two
projects, namely Shree Kshetrapal Square-1 and Shree
Kshetrapal Square-2. According to the defendant, such
disclosure was highly relevant and material, but the plaintiff
intentionally failed to disclose the same in the plaint while
seeking interim relief. It is therefore submitted that the
learned trial Court was well within its jurisdiction in declining
to exercise discretionary powers under Order XXXIX Rules 1
and 2 of the Code.
10.4 It is further submitted that the documents relating to the
construction of Shree Kshetrapal Square-1 and Shree
Kshetrapal Square-2, including the development permissions
issued for the said projects, along with the documents relating
to projects undertaken by the defendant under the name
"Kshetrapal", such as Kshetrapal Reyansh Avenue and
Reyansh Kshetrapal The Palms, clearly demonstrate the
defendant's use of the mark. Reliance is also placed on the
affidavit of the engineer, Mr.Mayank Goradia, confirming that
the defendant has been using the name "Kshetrapal
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Construction" since 2014, as well as the affidavit of a vendor
who supplied materials to Kshetrapal Construction. According
to the defendant, these materials prima facie establish that
the defendant is the prior user of the mark "Kshetrapal
Construction". In contrast, the plaintiff obtained registration
of the device mark only on 06.10.2023 and in the said
application had declared the mark as "proposed to be used",
without claiming any prior usage. Under such circumstances,
it is submitted that the plaintiff can at the most claim
exclusivity over the device mark as a whole, and not
over any individual component such as the word "Kshetrapal".
10.5 It is further contended that the stand taken by the
plaintiff before the Trade Marks Registry and the stand taken
before this Court are mutually inconsistent and contradictory,
thereby amounting to approbation and reprobation. Before the
Trademark authority, the plaintiff had asserted that
exclusivity was being claimed only over the device mark
, whereas before this Court, under the guise of the
registered device mark, the plaintiff is attempting to claim
exclusive rights over the word "Kshetrapal", which according
to the defendant is impermissible in law. It is therefore
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submitted that the learned trial Court has rightly declined to
grant interim relief.
10.6 It is also submitted that the plaintiff has failed to
establish prior use of the trade name "Shree Kshetrapal" since
the year 2015 through any cogent or reliable evidence.
According to the defendant, the various business entities
relied upon by the plaintiff, such as Shree Kshetrapal
Agritech, Shree Kshetrapal Oil Refinery Pvt. Ltd., Shree
Kshetrapal Infrastructure, Shree Kshetrapal Building
Materials and Shree Kshetrapal Infra LLP, were not engaged
in construction activities. It is therefore submitted that mere
registration of a trademark does not confer an exclusive right
in a case where the defendant has raised a defence under
Section 34 of the Trade Marks Act, which recognizes the
rights of a prior user. On the other hand, according to the
defendant, prima facie evidence has been produced to
demonstrate that the defendant has been engaged in
construction activity since 2014, including third-party
affidavits and documents relating to projects jointly
undertaken with the plaintiff such as Shree Kshetrapal
Square-1 and Shree Kshetrapal Square-2, as well as
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independent projects such as Kshetrapal Reyansh Avenue and
Reyansh Kshetrapal The Palms. In such circumstances, it is
submitted that the impugned order passed by the learned trial
Court cannot be said to be erroneous, and the present Appeal
from Order deserves to be dismissed.
10.7 It is further submitted that the word "Kshetrapal" is non-
distinctive in character, publici juris, and also the name of a
deity, and therefore no monopoly can be claimed over the said
word. The plaintiff's registration pertains only to a device
mark, and therefore in view of Section 17 of the Trade Marks
Act, the plaintiff is not entitled to dissect the mark "Shree
Kshetrapal" and claim exclusive rights over the word
"Kshetrapal" alone. According to the defendant, under the
anti-dissection rule, a registered trademark is required to be
considered as a composite mark in its entirety and not by
isolating individual components thereof.
10.8 It is further contended that the word "Kshetrapal", being
a name of a deity and non-distinctive in nature, has become
publici juris, and several entities are registered under the
name "Kshetrapal" in relation to different business activities.
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Therefore, according to the defendant, no exclusivity or
monopoly can be permitted over the word "Kshetrapal".
10.9 Lastly, it is submitted that the defendant is the prior and
continuous user of the word "Kshetrapal", and in view of
Section 34 of the Trade Marks Act, the rights of a prior user
prevail over those of a subsequent registrant. According to the
defendant, the record clearly indicates that the plaintiff's
device mark was registered only on 06.10.2023 and was
declared as "proposed to be used", without citing any prior
use. In such circumstances, since the defendant has prima
facie established prior use of the word "Kshetrapal", the
learned trial Court was perfectly justified in refusing to grant
interim relief in favour of the plaintiff.
10.10 To substantiate the aforesaid contentions, learned
Senior Advocate Mr.Kamal B. Trivedi has placed reliance on
the following authorities :
(1) Wander Ltd. v. Antox India P. Ltd., reported in 1990
(Supp.) SCC 727.
(2) S.P. Chengal Varaya Naidu v. Jagannath, reported in
(1994) 1 SCC 1.
(3) Lalit Kumar Jain v. Jaipur Traders Corporation Pvt. Ltd.,
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reported in (2002) 5 SCC 383.
(4) K.D. Sharma v. Steel Authority of India Ltd., reported in
(2008) 12 SCC 481.
(5) Lal Babu Priyadarshi v. Amritpal Singh, reported in
(2015) 16 SCC 795.
(6) Nandhini Deluxe v. Karnataka Cooperative Milk
Producers Federation Ltd., reported in (2018) 9 SCC
(7) Ganesh Grains Ltd. v. Shree Ganesh Besan Mill,
rendered in SLP(C)No.7812 of 2022.
(8) Pernod Ricard India Pvt. Ltd. v. Karnaveer Singh
Chhabra, reported in 2025 SCC Online SC 1701.
(9) Bhole Baba Milk Food Industries Ltd. v. Parul Food
Specialities (P) Ltd., reported in 2011 (121) DRJ 536.
(10) Vardhman Buildtech Pvt. Ltd. v. Vardhman Properties
Ltd., reported in 2016 SCC Online Del 4738.
(11) Aura Synergy India Ltd. v. M/s. New Age False Ceiling
Co. Pvt. Ltd., reported in 2016 SCC Online Del 892.
(12) Freudengerg Gala Household Product Pvt. Ltd. v. GEBI
Products, reported in Commercial Appeal No.72 of 2017
by the Bombay High Court.
(13) Shree Ganesh Besan Mill v. Ganesh Grains Ltd., reported
in 2021 SCC Online Cal.3068.
(14) Pathanjali Ayurved Limited v. Arudra Engineers Pvt.
Ltd., reported in 2021 SCC Online Mad 5567.
(15) Kent RO Systems Ltd. v. Gattu Bhai, reported in 2022
SCC Online Del 791.
(16) Apollo Parker Construction Equipments Pvt. Ltd. v.
Amman India Private Limited, rendered in Appeal from
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Order No.43 of 2022 by this Court.
(17) Unisn Health Check Up and Diagnostics LLP v. Amman
India Private Limited, rendered in Appeal from Order
No.98 of 2024 by this Court.
(18) Shoban Salim Thakur v. Chaitanya Arora, rendered
Interim Application (L) No.18278 of 2025 by the
Bombay High Court.
(19) S. Syed Mohideen v. P. Sulochana Bai, reported in 2016)
2 SCC 683.
(20) DCM Shriram Ltd. v. Amreek Singh Chawla, rendered in
2025 SCC Online Del 197.
10.11 By making above submissions, learned Senior Advocate
Mr.Kamal B. Trivedi urged this Court to dismiss the present
Appeal from Order.
11. Having heard the submissions of learned advocates for
the respective parties and having carefully gone through the
material produced on record, the question that falls for
consideration of this Court is - whether the plaintiff is entitled
to grant of an interim injunction restraining the defendant
from using the impugned trademark 'Shree Kshetrapal' on the
ground that such use amounts to infringement and/or
imitation of the plaintiff's registered device mark, namely,
?
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12. So as to decide the aforesaid question, in my opinion,
certain provisions of the Trademark Act, 1999, deserve
threadbare scrutiny. Sections 9, 11, 17, 28, 31 and 34 are
relevant for the purpose, the same are quoted, thus:
"Section 9. Absolute grounds for refusal of
registration.--(1) The trade marks--
(a) which are devoid of any distinctive character, that is to
say, not capable of distinguishing the goods or services of
one person from those of another person;
(b) which consist exclusively of marks or indications
which may serve in trade to designate the kind, quality,
quantity, intended purpose, values, geographical origin or
the time of production of the goods or rendering of the
service or other characteristics of the goods or service;
(c) which consist exclusively of marks or indications
which have become customary in the current language or
in the bona fide and established practices of the trade,
shall not be registered:
Provided that a trade mark shall not be refused
registration if before the date of application for
registration it has acquired a distinctive character as a
result of the use made of it or is a well-known trade mark.
(2) A mark shall not be registered as a trade mark if--
(a) it is of such nature as to deceive the public or cause
confusion;
(b) it contains or comprises of any matter likely to hurt
the religious susceptibilities of any class or section of the
citizens of India;
(c) it comprises or contains scandalous or obscene matter;
(d) its use is prohibited under the Emblems and Names
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(Prevention of Improper Use) Act, 1950 (12 of 1950).
(3) A mark shall not be registered as a trade mark if it
consists exclusively of--
(a) the shape of goods which results from the nature of
the goods themselves; or
(b) the shape of goods which is necessary to obtain a
technical result; or
(c) the shape which gives substantial value to the goods.
Explanation.--For the purposes of this section, the nature
of goods or services in relation to which the trade mark is
used or proposed to be used shall not be a ground for
refusal of registration.
Section 11 - Relative grounds for refusal of
registration.--(1) Save as provided in section 12, a trade
mark shall not be registered if, because of--
(a) its identity with an earlier trade mark and similarity of
goods or services covered by the trade mark; or
(b) its similarity to an earlier trade mark and the identity
or similarity of the goods or services covered by the trade
mark,
there exists a likelihood of confusion on the part of the
public, which includes the likelihood of association with
the earlier trade mark.
(2) A trade mark which--
(a) is identical with or similar to an earlier trade mark;
and
(b) is to be registered for goods or services which are not
similar to those for which the earlier trade mark is
registered in the name of a different proprietor,
shall not be registered if or to the extent the earlier trade
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mark is a well-known trade mark in India and the use of
the later mark without due cause would take unfair
advantage of or be detrimental to the distinctive
character or repute of the earlier trade mark.
(3) A trade mark shall not be registered if, or to the
extent that, its use in India is liable to be prevented--
(a) by virtue of any law in particular the law of passing off
protecting an unregistered trade mark used in the course
of trade; or
(b) by virtue of law of copyright.
(4) Nothing in this section shall prevent the registration
of a trade mark where the proprietor of the earlier trade
mark or other earlier right consents to the registration,
and in such case the Registrar may register the mark
under special circumstances under section 12.
Explanation.--For the purposes of this section, earlier
trade mark means--
[(a) a registered trade mark or an application under
section 18 bearing an earlier date of filing or an
international registration referred to in section 36E or
convention application referred to in section 154 which
has a date of application earlier than that of the trade
mark in question, taking account, where appropriate, of
the priorities claimed in respect of the trade marks;]
(b) a trade mark which, on the date of the application for
registration of the trade mark in question, or where
appropriate, of the priority claimed in respect of the
application, was entitled to protection as a well-known
trade mark.
(5) A trade mark shall not be refused registration on the
grounds specified in sub-sections (2) and (3), unless
objection on any one or more of those grounds is raised in
opposition proceedings by the proprietor of the earlier
trade mark.
(6) The Registrar shall, while determining whether a
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trade mark is a well-known trade mark, take into account
any fact which he considers relevant for determining a
trade mark as a well-known trade mark including--
(i) the knowledge or recognition of that trade mark in the
relevant section of the public including knowledge in
India obtained as a result of promotion of the trade mark;
(ii) the duration, extent and geographical area of any use
of that trade mark;
(iii) the duration, extent and geographical area of any
promotion of the trade mark, including advertising or
publicity and presentation, at fairs or exhibition of the
goods or services to which the trade mark applies;
(iv) the duration and geographical area of any registration
of or any application for registration of that trade mark
under this Act to the extent that they reflect the use or
recognition of the trade mark;
(v) the record of successful enforcement of the rights in
that trade mark, in particular the extent to which the
trade mark has been recognised as a well-known trade
mark by any court or Registrar under that record.
(7) The Registrar shall, while determining as to whether a
trade mark is known or recognised in a relevant section of
the public for the purposes of sub-section (6), take into
account--
(i) the number of actual or potential consumers of the
goods or services;
(ii) the number of persons involved in the channels of
distribution of the goods or services;
(iii) the business circles dealing with the goods or
services, to which that trade mark applies.
(8) Where a trade mark has been determined to be well
known in at least one relevant section of the public in
India by any court or Registrar, the Registrar shall
consider that trade mark as a well-known trade mark for
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registration under this Act.
(9) The Registrar shall not require as a condition, for
determining whether a trade mark is a well-known trade
mark, any of the following, namely:--
(i) that the trade mark has been used in India;
(ii) that the trade mark has been registered;
(iii) that the application for registration of the trade mark
has been filed in India;
(iv) that the trade mark--
(a) is well-known in; or
(b) has been registered in; or
(c) in respect of which an application for registration has
been filed in, any jurisdiction other than India, or
(v) that the trade mark is well-known to the public at
large in India.
(10) While considering an application for registration of a
trade mark and opposition filed in respect thereof, the
Registrar shall--
(i) protect a well-known trade mark against the identical
or similar trade marks;
(ii) take into consideration the bad faith involved either of
the applicant or the opponent affecting the right relating
to the trade mark.
(11) Where a trade mark has been registered in good faith
disclosing the material informations to the Registrar or
where right to a trade mark has been acquired through
use in good faith before the commencement of this Act,
then, nothing in this Act shall prejudice the validity of the
registration of that trade mark or right to use that trade
mark on the ground that such trade mark is identical with
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or similar to a well-known trade mark.
Section 17 -Effect of registration of parts of a mark.
--(1) When a trade mark consists of several matters, its
registration shall confer on the proprietor exclusive right
to the use of the trade mark taken as a whole.
(2) Notwithstanding anything contained in sub-section (1),
when a trade mark--
(a) contains any part--
(i) which is not the subject of a separate application by
the proprietor for registration as a trade mark; or
(ii) which is not separately registered by the proprietor as
a trade mark; or
(b) contains any matter which is common to the trade or
is otherwise of a non-distinctive character,
the registration thereof shall not confer any exclusive
right in the matter forming only a part of the whole of the
trade mark so registered.
Section 28-Rights conferred by registration.--(1)
Subject to the other provisions of this Act, the registration
of a trade mark shall, if valid, give to the registered
proprietor of the trade mark the exclusive right to the use
of the trade mark in relation to the goods or services in
respect of which the trade mark is registered and to
obtain relief in respect of infringement of the trade mark
in the manner provided by this Act.
(2) The exclusive right to the use of a trade mark given
under sub-section (1) shall be subject to any conditions
and limitations to which the registration is subject.
(3) Where two or more persons are registered proprietors
of trade marks, which are identical with or nearly
resemble each other, the exclusive right to the use of any
of those trade marks shall not (except so far as their
respective rights are subject to any conditions or
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limitations entered on the register) be deemed to have
been acquired by any one of those persons as against any
other of those persons merely by registration of the trade
marks but each of those persons has otherwise the same
rights as against other persons (not being registered
users using by way of permitted use) as he would have if
he were the sole registered proprietor.
Section 31 Registration to be prima facie evidence
of validity.--
(1) In all legal proceedings relating to a trade mark
registered under this Act (including applications under
section 57), the original registration of the trade mark
and of all subsequent assignments and transmissions of
the trade mark shall be prima facie evidence of the
validity thereof.
(2) In all legal proceedings as aforesaid a registered
trade mark shall not be held to be invalid on the ground
that it was not a registrable trade mark under section 9
except upon evidence of distinctiveness and that such
evidence was not submitted to the Registrar before
registration, if it is proved that the trade mark had been
so used by the registered proprietor or his predecessor in
title as to have become distinctive at the date of
registration.
Section 34-Saving for vested rights.--Nothing in this
Act shall entitle the proprietor or a registered user of
registered trade mark to interfere with or restrain the use
by any person of a trade mark identical with or nearly
resembling it in relation to goods or services in relation to
which that person or a predecessor in title of his has
continuously used that trade mark from a date prior--
(a) to the use of the first-mentioned trade mark in relation
to those goods or services by the proprietor or a
predecessor in title of his; or
(b) to the date of registration of the first-mentioned trade
mark in respect of those goods or services in the name of
the proprietor of a predecessor in title of his;
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whichever is the earlier, and the Registrar shall not
refuse (on such use being proved) to register the second
mentioned trade mark by reason only of the registration
of the first-mentioned trade mark."
Legal Analysis :
13. A plain reading of Section 9 of the Trade Marks Act,
1999 reveals that it provides for absolute grounds for refusal
of registration of a trademark. The provision seeks to ensure
that only marks which are distinctive and legally permissible
are entered in the register. It prohibits registration of marks
which are devoid of distinctive character, descriptive of the
goods or services, or customary in the trade, as such
expressions are considered part of the public domain and
must remain available for use by traders. At the same time,
the provision recognizes that even such marks may become
registrable if they have acquired distinctiveness through
extensive and continuous use, thereby enabling the public to
associate the mark with a particular source. The provision
further bars registration of marks whose use would be
deceptive, scandalous, obscene, or offensive to religious
sentiments, or otherwise prohibited by law, thereby
safeguarding public interest and morality. It also restricts
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registration of certain functional or value-giving shapes of
goods, so as to prevent traders from securing a perpetual
monopoly over features inherent in the goods themselves.
Thus, Section 9 operates as a threshold filter, ensuring that
only marks capable of functioning as indicators of trade origin
are registered.
13.1 A plain reading of Section 11 of the Act indicates that it
prescribes relative grounds for refusal of registration,
primarily intended to protect earlier trademark rights and to
prevent consumer confusion. Unlike Section 9, which deals
with the inherent distinctiveness of a mark, Section 11
examines the relationship between the proposed mark and
existing marks. The provision bars registration where the
mark sought to be registered is identical with or deceptively
similar to an earlier mark in respect of similar goods or
services, if such similarity is likely to cause confusion or
association in the minds of the public. The provision also
extends protection to well-known trademarks, by prohibiting
registration of identical or similar marks even in respect of
dissimilar goods or services, where such use would take unfair
advantage of, or dilute, the reputation of the well-known
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mark.
13.2 Section 17 of the Act governs the effect of registration of
a composite trademark consisting of several components. The
provision clarifies that registration confers an exclusive right
in the trademark as a whole, and not necessarily in respect of
each individual component forming part of the mark. Sub-
section (2) further restricts such exclusivity by providing that
registration shall not confer any exclusive right in respect of
any part of the mark which is not separately registered or is
not independently capable of registration, such as elements
that are descriptive, generic or otherwise non-distinctive. The
legislative intent underlying Section 17 is to prevent the
proprietor from dissecting a composite mark and claiming
monopoly over common or non-distinctive elements. The
provision, therefore, strikes a balance between protecting the
proprietor's rights in the registered composite mark and
ensuring that descriptive or common elements remain
available for legitimate use by others.
13.3 A plain reading of Section 28 of the Act indicates that
registration of a trademark confers upon the registered
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proprietor a statutory right to exclusive use of the mark in
relation to the goods or services for which it is registered. The
provision recognizes two principal rights, namely: (i) the
exclusive right to use the trademark in the course of trade,
and (ii) the right to seek legal remedies against infringement.
However, the exclusivity flowing from registration is not
absolute and remains subject to other provisions of the Act,
including prior user rights, conditions attached to
registration, or limitations arising from the nature of the mark
itself. Sub-section (2) further clarifies that where identical or
deceptively similar marks are registered in favour of different
proprietors, such registration does not entitle one registered
proprietor to claim exclusivity against the other, though each
may enforce his rights against third parties. Thus, Section 28
establishes the statutory proprietary rights arising from
registration, while simultaneously recognizing the statutory
limitations and coexistence of similar registered marks within
the framework of trademark law.
13.4 A plain reading of Section 31 of the Act suggests that
registration of a trademark constitutes prima facie evidence of
its validity. The Legislature has clarified that such registration
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carries only evidentiary value and not conclusive proof of
validity. The validity of a registered trademark may still be
challenged if it is shown that the mark did not possess the
requisite distinctiveness or was otherwise not entitled to
registration at the time it was registered. Thus, the
presumption created under Section 31 is rebuttable in nature,
and the registration remains subject to scrutiny on legally
permissible grounds.
13.5 A plain reading of Section 34 of the Act embodies the
fundamental principle that prior user prevails over
subsequent registration. The provision protects the vested
rights of a person who has continuously and bona fide used a
trademark from an earlier point of time, even if another
person subsequently obtains registration of the same or a
similar mark. In effect, the statutory monopoly created under
Section 28 remains subordinate to the superior rights of a
prior user. Consequently, a registered proprietor cannot
restrain a party who is able to demonstrate earlier and
continuous use of the mark in relation to the same goods or
services. The provision thus safeguards the commercial
goodwill and reputation acquired through prior use, ensuring
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that registration does not defeat pre-existing proprietary
rights in a trademark.
14. Keeping in mind the aforesaid analysis of the provisions
of the Trademark Act, it would be an apt to take note of the
recent enunciation of law by the Apex Court in the case of
Pernod Ricard India Pvt. Ltd. v. Karnaveer Singh
Chhabra, reported in 2025 SCC Online 1701. The Apex
Court, keeping in mind various provisions of law on
Trademark, succinctly held as under :
"31.5 In the case of composite marks - those contained
multiple elements, such as words and logos - the overall
impression created by the mark is relevant. However,
proprietors cannot claim exclusive rights over individual
components, particularly, non-distinctive or descriptive
elements. Courts have often required disclaimers of such
generic parts at the time of registration. For instance, in
Tungabhadra Industries Ltd v. Registrar of Trade Marks
24, the registration of "Diamond T" in a diamond-shaped
logo was granted, but the word "Diamond" was required
to be disclaimed due to its non-distinctiveness.
32.4 In the present case, the appellants' attempt to
isolate the word 'PRIDE' as the basis of comparison is
legally untenable. Trademark similarity must be assessed
by considering the mark as a whole, and not by extracting
a single component for comparison. When viewed in their
entirety, the appellants' marks - 'BLENDERS PRIDE',
'IMPERIAL BLUE', and 'SEAGRAM'S' - are structurally,
phonetically, and visually distinct from the respondent's
mark 'LONDON PRIDE'. The mere presence of the
common word 'PRIDE' which is a generic and laudatory
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term, does not render the competing marks
deceptively similar in the absence of an overall
resemblance. Thus, under the anti-dissection rule, no case
for infringement or passing off is made out.
34. It is a well-established principle of trademark law
that generic, descriptive, or laudatory terms - particularly
those commonly used in a given trade - cannot be
monopolized by any one proprietor. Even where such
terms form part of a registered trademark, protection
does not extend to those elements per se unless it is
affirmatively shown that they have acquired secondary
meaning - i.e., that the term has come to be exclusively
and distinctively associated with the plaintiff's goods in
the perception of the consuming public.
41. It is a settled principle of trademark law that
deceptive similarity does not necessitate exact imitation.
What is material is the likelihood of confusion or
association in the minds of consumers arising from an
overall resemblance between the competing marks. The
applicable standard is that of an average consumer with
imperfect recollection.
42. While comparing rival marks, Courts must assess the
marks in their entirety, rather than dissecting composite
trademarks into isolated components. The dominant
feature of a mark may assist in crossing the preliminary
threshold of analysis, but the ultimate inquiry must focus
on the overall impression created by the mark - especially
in the context of the relevant goods, trade channels, and
target consumers. The proper test is not to place the two
marks side by side to identify dissimilarities, but to
determine whether the impugned mark, when viewed
independently, is likely to create an impression of
association or common origin in the mind of the average
consumer. Even if a particular component of a mark lacks
inherent distinctiveness, its imitation may still amount to
infringement if it constitutes an essential and distinctive
feature of the composite mark as a whole.
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43. Section 17(1) of the Trade Marks Act, 1999 grants
exclusive rights only in respect of the mark as registered.
Section 17(1) excludes protection for common or non-
distinctive elements unless such elements have acquired
secondary meaning. Section 27(2) and 29 preserve the
right to institute passing off actions and define the
contours of infringement, respectively. Notably, Section
29(3) presumes confusion only where identical marks are
used for identical goods - a condition not met in the
present case as the marks.
46. The courts below also correctly observed that the
products in question are premium and ultra-premium
whiskies, targeted at a discerning consumer base. Such
consumers are likely to exercise greater care in their
purchase decisions. The distinct trade dress and
packaging reduce any likelihood of confusion. The shared
use of the laudatory word 'PRIDE', in isolation, cannot
form the basis for injunctive relief.
51. It is not in dispute that the word "PRIDE" is not
registered as a standalone mark. Nor can the appellants
claim exclusivity over common elements like bottle shape
or color schemes that are generic and widely used in the
industry. While the composite marks 'BLENDERS PRIDE'
and 'IMPERIAL BLUE' are protected, their individual
elements - lacking distinctiveness - are not independently
enforceable.
55. Although the appellants hold registrations for the
composite marks, no evidence was adduced to
demonstrate that any particular element - such as bottle
shape, color scheme, or the word "PRIDE" - had acquired
distinctiveness or secondary meaning. Trademark
protection extends only to distinctive
identifiers. Descriptive or commonplace elements fall
outside the ambit of protection unless distinctiveness is
proved."
15. Upon careful consideration of the aforesaid decision, the
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Apex Court in no uncertain terms held that while comparing
rival marks, the Courts must assess the marks in their
entirety, rather than dissecting composite trademarks into
isolated components. Section 17(1) of the Trade Marks Act,
1999 grants exclusive rights only in respect of the mark as
registered. Section 17(1) excludes protection for common or
non-distinctive elements unless such elements have acquired
secondary meaning.
16. In order to adjudicate the issue involved in the present
proceedings, it would be appropriate to consider the salient
facts emerging from the record, which may be summarized as
under:
(i) Though it is the case of the plaintiff that he has been
engaged in the business of construction since the year 2015
by using the trade name "Shree Kshetrapal", it is pertinent to
note that at the time of filing the application for registration of
the device mark , the plaintiff had not claimed any
prior use from a particular date. On the contrary, in the said
application, the device mark was declared as "proposed to be
used."
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(ii) During the course of the registration proceedings, the
Registrar of Trade Marks had raised objections under
Sections 9 and 11 of the Trade Marks Act, 1999. In response
thereto, the plaintiff had categorically stated that he was not
claiming exclusive rights over the word "Kshetrapal" in
isolation, but was seeking protection only in respect of the
entire device mark as a whole. It was also asserted
that the device mark, taken as a whole, was artistically and
visually distinct from the marks cited by the Registrar. Thus,
before the Registrar of Trade Marks, the plaintiff had claimed
exclusivity only in respect of the composite device mark
and not in respect of the individual word
"Kshetrapal."
(iii) In the plaint, the plaintiff has asserted that the trademark
"Shree Kshetrapal" has been in use since the year 2015, by
referring to business entities such as Shree Kshetrapal
Agritech, Shree Kshetrapal Oil Refinery Pvt. Ltd., Shree
Kshetrapal Infrastructure, Shree Kshetrapal Building
Materials and Shree Kshetrapal Infra LLP. However, the
plaintiff has not been able to produce any material to
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demonstrate that the said entities were engaged in
construction activities since the year 2015.
(iv) It is also relevant to note that the mark "Shree
Kshetrapal" refers to the name of a protector deity, which
appears to be popularly and commonly used. The prefix
"Shree" is generally employed as a respectful honorific and is
not distinctive in character. Consequently, the dominant
element of the expression "Shree Kshetrapal" appears to be
the word "Kshetrapal," which itself carries religious
connotations.
(v) It is an admitted position that the plaintiff, in the plaint,
has not disclosed the earlier association or relationship with
the defendant. It is also not in dispute that the plaintiff and
the defendant had jointly floated two schemes, namely "Shree
Kshetrapal Square-1" and "Shree Kshetrapal Square-2."
(vi) From the documentary material produced on record,
including sale deeds and development permissions, it prima
facie appears that the plaintiff and the defendant had jointly
purchased the land and thereafter launched the projects
"Shree Kshetrapal Square-1" and "Shree Kshetrapal Square-
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2" by obtaining joint development permissions.
(vii) The plaintiff has also not disclosed in the plaint the fact
that objections had been raised by the Registrar of Trade
Marks under Sections 9 and 11 of the Act during the course of
the registration proceedings relating to the device mark
.
(viii) It further emerges from the record that the defendant
has also filed an application on 28.04.2025 for registration of
a device mark under Trademark Application
No.6980721 in Class 37, which is presently pending
adjudication. In the said application, the defendant has
claimed user since 05.01.2014. The defendant has also placed
on record prima facie evidence in the form of third-party
affidavits, including those of a vendor and an architect, in
support of the contention that the defendant has been
engaged in construction activities under the name
"Kshetrapal Construction" since the year 2014.
17. Keeping in mind the legal analysis as well as the facts of
the case, this Court would like to proceed further to deal with
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the contentions raised by the rival parties, as under :
Suppression of material fact and misleading statement :
(1) Before this Court goes into suppression and/or
misleading statement is made or not, at this juncture, it would
be profitable to consider the recent decision of the Apex Court
in the case of Kusha Duruka v. State of Odisha, reported in
(2024) 4 SCC 432, wherein the Apex Court has explained
doctrine and maxims - suppression veri and expressio falsi
and effect thereof. Relevant observations of the aforesaid
decision, read thus;
"3. In K.D. Sharma Vs. Steel Authority of India Limited
and others it was observed by this Court:
"39. If the primary object as highlighted in Kensington
Income Tax Commrs., (1917) 1 KB 486 : 86 LJKB 257 :
116 LT 136 (CA) is kept in mind, an applicant who
does not come with candid facts and "clean breast"
cannot hold a writ of the court with "soiled hands".
Suppression or concealment of material facts is not an
advocacy. It is a jugglery, manipulation, maneuvering
or misrepresentation, which has no place in equitable
and prerogative jurisdiction. If the applicant does not
disclose all the material facts fairly and truly but
states them in a distorted manner and misleads the
court, the court has inherent power in order to
protect itself and to prevent an abuse of its process to
discharge the rule nisi and refuse to proceed further
with the examination of the case on merits. If the
court does not reject the petition on that ground, the
court would be failing in its duty. In fact, such an
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applicant requires to be dealt with for contempt of
court for abusing the process of the court."
[emphasis supplied]
4. In Dalip Singh v. State of Uttar Pradesh and others,
this Court noticed the progressive decline in the values
of life and the conduct of the new creed of litigants, who
are far away from truth. It was observed as under:
"1. For many centuries Indian society cherished
two basic values of life i.e."satya" (truth) and "ahinsa"
(non- violence). Mahavir, Gautam Buddha and
Mahatma Gandhi guided the people to ingrain these
values in their daily life. Truth constituted an integral
part of the justice- delivery system which was in
vogue in the pre- Independence era and the people
used to feel proud to tell truth in the courts
irrespective of the consequences. However, post-
Independence period has seen drastic changes in our
value system. The materialism has overshadowed the
old ethos and the quest for personal gain has become
so intense that those involved in litigation do not
hesitate to take shelter of falsehood,
misrepresentation and suppression of facts in the
court proceedings.
2. In the last 40 years, a new creed of litigants
has cropped up. Those who belong to this creed do
not have any respect for truth. They shamelessly
resort to falsehood and unethical means for achieving
their goals. In order to meet the challenge posed by
this new creed of litigants, the courts have, from time
to time, evolved new rules and it is now well
established that a litigant, who attempts to pollute the
stream of justice or who touches the pure fountain of
justice with tainted hands, is not entitled to any relief,
interim or final."
(emphasis supplied)
5. In Moti Lal Songara Vs. Prem Prakash @ Pappu
and another, this Court, considering the issue regarding
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concealment of facts before the Court, observed that
"court is not a laboratory where children come to play",
and opined as under:
"19. The second limb of the submission is whether in
the obtaining factual matrix, the order passed by the
High Court discharging the accused-respondent is
justified in law. We have clearly stated that though
the respondent was fully aware about the fact that
charges had been framed against him by the learned
trial Judge, yet he did not bring the same to the notice
of the revisional court hearing the revision against the
order taking cognizance. It is a clear case of
suppression. It was within the special knowledge of
the accused. Any one who takes recourse to method of
suppression in a court of law, is, in actuality, playing
fraud with the court, and the maxim supressio veri,
expression faisi , i.e., suppression of the truth is
equivalent to the expression of falsehood, gets
attracted. We are compelled to say so as there has
been a calculated concealment of the fact before the
revisional court. It can be stated with certitude that
the accused- respondent tried to gain advantage by
such factual suppression. The fraudulent intention is
writ large. In fact, he has shown his courage of
ignorance and tried to playpossum.
20. The High Court, as we have seen, applied the
principle "when infrastructure collapses, the
superstructure is bound to collapse". However, as the
order has been obtained by practising fraud and
suppressing material fact before a court of law to gain
advantage, the said order cannot be allowed to
stand."
(emphasis supplied)
6. It was held in the judgments referred to above that
one of the two cherished basic values by Indian society
for centuries is "satya" (truth) and the same has been put
under the carpet by the petitioner. Truth constituted an
integral part of the justice-delivery system in the pre-
Independence era, however, post-Independence period
has seen drastic changes in our value system. The
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materialism has overshadowed the old ethos and the
quest for personal gain has become so intense that those
involved in litigation do not hesitate to take shelter of
falsehood, misrepresentation and suppression of facts in
the court proceedings. In the last 40 years, the values
have gone down and now a litigants can go to any extent
to mislead the court. They have no respect for the truth.
The principle has been evolved to meet the challenges
posed by this new breed of litigants. Now it is well settled
that a litigant, who attempts to pollute the stream of
justice or who touches the pure fountain of justice with
tainted hands, is not entitled to any relief, interim or
final. Suppression of material facts from the court of law,
is actually playing fraud with the court. The maxim
supressio veri, expression faisi, i.e. suppression of the
truth is equivalent to the expression of falsehood, gets
attracted. Its nothing but degradation of moral values in
the society, may be because of our education system.
Now we are more happy to hear anything except truth;
read anything except truth; speak anything except truth
and believe anything except truth. Someone rightly said
that `Lies are very sweet, while truth is bitter, that's why
most people prefer telling lies.'
7. In a recent matter, this Court again came across a
litigant who had tried to overreach the Court by
concealing material facts in Saumya Chaurasia v.
Directorate of Enforcement. It was a case where the
appellant before this Court had challenged the order
passed by the High Court6 rejecting his bail application.
He was accused of committing various crimes under the
Indian Penal Code and the Prevention of Money
Laundering Act, 2002. His bail application was rejected
by the High Court on 23.06.2023. In the pleadings before
this Court, it was mentioned that the High Court had
committed gross error in not considering the chargesheet
dated 08.06.2023 and the cognizance order dated
16.06.2023, which clearly suggested that there was error
apparent on the fact of it. The fact which was available on
record was that an order in the bail application was
reserved by the High Court on 17.04.2023 and
pronounced on 23.06.2023. Having some suspicion, this
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Court directed the appellant to file an affidavit to clarify
the aforesaid position. There was no specific reply given
to the aforesaid query to the Court. Rather vague
statements were made. Considering the facts available,
this Court observed that there was a bold attempt by and
on behalf of the appellant therein to misrepresent the
facts for challenging the order impugned therein,
regarding the conduct of the parties and the counsel, this
Court made the following observations :
"13. It cannot be gainsaid that every party
approaching the court seeking justice is expected to
make full and correct disclosure of material facts and
that every advocate being an officer of the court,
though appearing for a particular party, is expected to
assist the court fairly in carrying out its function to
administer the justice. It hardly needs to be
emphasized that a very high standard of
professionalism and legal acumen is expected from the
advocates particularly designated Senior advocates
appearing in the highest court of the country so that
their professionalism may be followed and emulated by
the advocates practicing in the High Courts and the
District Courts. Though it is true that the advocates
would settle the pleadings and argue in the courts on
instructions given by their clients, however their duty
to diligently verify the facts from the record of the
case, using their legal acumen for which they are
engaged, cannot be obliviated.
(emphasis supplied)"
Upon consideration of the facts of the present case, this
Court is of the firm opinion that the plaintiff has approached
the Court by making misleading statements and suppressing
material facts, while presenting a distorted version of the
factual matrix. This conclusion is drawn primarily from the
circumstance that the plaintiff has failed to disclose the
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fundamental fact that the plaintiff and the defendant had
jointly purchased the land and thereafter jointly launched the
projects, namely, "Shree Kshetrapal Square-1" and "Shree
Kshetrapal Square-2." Such a material and crucial fact was
withheld by the plaintiff while instituting the suit, thereby
enabling the plaintiff to obtain an ex-parte ad-interim
injunction at the initial stage. Not only that, the plaintiff has
also suppressed the fact that the application for registration
of the device mark was filed on the basis that the mark was
"proposed to be used" and not on the basis of prior use. The
plaintiff has further failed to disclose the objections raised by
the Registrar of Trade Marks under Sections 9 and 11 of the
Trade Marks Act, as well as the submissions made by the
plaintiff in response thereto. It is evident from the record that
before the Registrar of Trade Marks, the plaintiff had
categorically stated that he was claiming exclusivity only in
respect of the device mark as a whole and not over the word
mark "Kshetrapal." Despite such a stand before the statutory
authority, the plaintiff, in the plaint, has taken a contrary and
misleading plea by asserting that the mark has been in use
since the year 2015. In a suit alleging trademark infringement
and passing off, a plaintiff is expected to make full and candid
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disclosure of all relevant facts, including the proceedings
before the Registrar of Trade Marks relating to the
registration of the mark in question. In the present case, the
plaintiff has clearly failed to disclose material facts, thereby
disentitling itself to the equitable relief sought. In the
considered opinion of this Court, the plaintiff cannot be said to
have approached the Court with clean hands and appears to
have instituted the proceedings with suppression of facts,
misleading statements and a distorted presentation of the
factual position, apparently with an oblique intention. In such
circumstances, the learned trial Court could have rejected the
application for interim relief solely on the ground of
suppression of material facts, without entering into the merits
of the controversy. The only infirmity which this Court finds in
the impugned order is that the rejection of the interim relief
was not accompanied by an order of costs. However, since the
learned trial Court has also examined the matter on merits,
this Court deems it appropriate to consider the case on merits
as well.
(2) Protection under Section 28 vis-à-vis Section 34:
As discussed hereinabove, Section 28 of the Trade Marks
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Act, 1999 confers upon the registered proprietor a statutory
right to the exclusive use of the registered trademark in
relation to the goods or services for which the mark stands
registered. However, such exclusivity is not absolute and
remains subject to other provisions of the Act, particularly the
protection afforded to a prior user under Section 34. In the
present case, it is an admitted position that the plaintiff
applied for registration of its device mark under
Class 37 vide Application No.6138925. Significantly, in the
said application the plaintiff did not claim registration on the
basis of prior use; on the contrary, the device mark
was declared as "proposed to be used." In such peculiar
circumstances where the plaintiff itself has claimed the
registered device mark as 'proposed to be used and once the
defendant has raised a defence under Section 34 of the Act on
the ground of prior and continuous use, the burden was upon
the plaintiff to demonstrate that it had been using the said
trademark prior to the use claimed by the defendant.
However, upon examination of the plaint and the documents
placed on record, this Court finds that the plaintiff has failed
to establish that any of its entities were engaged in
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construction activities under the trade name "Shree
Kshetrapal." The firms relied upon by the plaintiff, namely
Shree Kshetrapal Agritech, M/s. Shree Kshetrapal Oil Refinery
Pvt. Ltd., Shree Kshetrapal Infrastructure and Shree
Kshetrapal Building Materials, prima facie indicate that the
plaintiff was engaged in business activities other than
construction, albeit under the name "Shree Kshetrapal."
Consequently, the material on record does not satisfactorily
establish that the plaintiff had been using the trade name
"Shree Kshetrapal" in relation to construction activities prior
to the defendant. Further, when the registration of the device
mark itself has been sought on the basis that the
mark was "proposed to be used," the plaintiff cannot, under
the guise of such registration, claim exclusive rights over an
individual component of the registered device mark. At best,
the exclusivity contemplated under Section 28 would extend
only to the device mark in its entirety. Even otherwise, the
plaintiff has attempted to rely upon sales figures from the year
2015 to 2025 in support of its claim of use. However, the said
figures do not clearly indicate which entity generated the
sales, nor do they specify the particular projects or business
activities from which such figures were derived. Moreover,
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having regard to the nature of the construction business, the
figures appear comparatively modest and do not prima facie
suggest that the plaintiff had developed a wide commercial
presence, substantial goodwill, or extensive business
operations under the said mark. On the other hand, the
defence raised by the defendant under Section 34 prima facie
appears to have some substance. The defendant has produced
third-party affidavits, including those of a vendor and an
architect, indicating that the firm "Kshetrapal Construction"
has been engaged in construction activities since the year
2014. In addition, the defendant has placed on record
documents suggesting that several projects have been
undertaken wherein either the expression "Shree Kshetrapal"
or "Kshetrapal" has been used. In the aforesaid
circumstances, this Court is of the considered view that mere
registration of a device mark under Section 28 does not
entitle the plaintiff to claim exclusivity over an individual
component of the mark. The statutory exclusivity, if any,
would extend only to the composite device mark as registered.
It is true that in order to successfully invoke the defence
under Section 34, the defendant is required to demonstrate
continuous and prior use of the trademark, and the burden of
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establishing such prior use ordinarily lies upon the defendant.
However, such strict proof would arise only where the plaintiff
itself has clearly established prior use of the mark in question.
In the present case, the plaintiff did not claim any prior use at
the time of seeking registration of the device mark ,
and has subsequently attempted, in the plaint, to assert usage
since the year 2015 under the guise of the registered device
mark. In the considered opinion of this Court, therefore, it
was incumbent upon the plaintiff to first establish a clear and
cogent case of prior use, and only thereafter could the
defendant be called upon to discharge the stricter burden
contemplated under Section 34. In the absence of such
material from the plaintiff, the reliance placed upon Section
28 to claim exclusivity cannot be accepted.
Additionally, this Court is of the view that the
expression "Shree Kshetrapal" itself does not appear to
possess distinctive character. The word "Kshetrapal" refers to
the name of a deity, and therefore carries a religious
connotation which is commonly used. Consequently, the mark
lacks inherent distinctiveness. In view of Section 9 of the Act,
exclusivity over such a non-distinctive expression cannot
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ordinarily be claimed. It is also pertinent to note that at the
time of registration of the device mark , the Registrar
of Trade Marks had raised an objection under Section 9, to
which the plaintiff responded by stating that exclusivity was
being claimed only in respect of the device mark as a
whole, on account of its distinctive artistic representation.
Having taken such a stand before the statutory authority, the
plaintiff cannot now seek, through the present proceedings, to
obtain exclusive rights over the non-distinctive word "Shree
Kshetrapal." Thus, on an overall consideration of the statutory
scheme and the material placed on record, the contention
advanced on behalf of the plaintiff on the basis of Section 28
cannot be accepted.
(3) Rule of Anti-Dissection - Section 17:
As discussed hereinabove, Section 17 of the Trade Marks
Act, 1999 governs the effect of registration of a composite
trademark consisting of multiple components. The provision
makes it clear that registration of a composite mark confers
exclusive rights in the mark as a whole, and not necessarily in
respect of each individual component forming part of the
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registered mark. In other words, the law recognizes the rule
of anti-dissection, whereby a composite trademark is required
to be considered in its entirety, and the proprietor cannot
isolate one element of such mark to claim exclusivity thereon.
In the present case, it is an admitted position that the plaintiff
has obtained registration only in respect of a device mark
. In such circumstances, it would not be permissible
for the plaintiff to claim exclusive rights over one of the
components of the said device mark, namely, the expression
"Shree Kshetrapal." The statutory scheme under Section 17
contemplates that if exclusivity is sought over any individual
component of a composite mark, such component must either
be independently distinctive and separately registered, or
otherwise capable of separate registration. In the case at
hand, it is not in dispute that the expression "Shree
Kshetrapal" has not been registered independently in favour
of the plaintiff, and the application filed by the plaintiff
seeking registration of the said word mark is still pending
consideration before the Trade Marks Registry. In view of
Section 17(2), where a registered mark contains elements
which are common to the trade, non-distinctive, or otherwise
incapable of independent registration, the proprietor cannot
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claim exclusivity over such elements merely because they
form part of a registered composite device mark.
Furthermore, the word "Kshetrapal" carries religious and
mythological connotations and is commonly understood as
referring to a guardian deity or protector of a region or
temple. Expressions of such nature, which are widely used
and possess religious significance, ordinarily lack the element
of inherent distinctiveness necessary for conferring exclusive
proprietary rights. Therefore, having regard to the scheme
and intent of Section 17, this Court is of the considered view
that the plaintiff cannot dissect the registered device mark
and claim exclusivity over the expression "Shree
Kshetrapal." Consequently, the plaintiff cannot claim any
monopoly or exclusive right over the said expression, nor can
such claim form the basis for grant of equitable relief in the
present proceedings.
(4) Presumption of Validity of Registered Trademark -
Scope of Section 31:
So far as the contention raised with reference to Section
31 of the Trade Marks Act, 1999 is concerned, the said
provision deals with the statutory presumption of validity
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attached to a registered trademark. The provision stipulates
that registration of a trademark shall be prima facie evidence
of its validity. In the facts of the present case, there is no
dispute with regard to the registration of the plaintiff's device
mark . The controversy, however, does not pertain to
the validity of the registration itself, but rather to the
plaintiff's attempt to claim exclusivity over one of the
components of the registered device mark, namely, the
expression "Shree Kshetrapal." It is required to be noted that
the presumption under Section 31 ordinarily comes into
operation where, in a suit for infringement or passing off, the
defendant challenges or disputes the validity of the
registration of the trademark itself. In the present case, the
defendant has not disputed the validity of the plaintiff's
registered device mark . The dispute is confined only
to the plaintiff's claim that it enjoys exclusive rights over the
word "Shree Kshetrapal," which forms merely one of the
components of the registered device mark. In such
circumstances, the plaintiff cannot invoke Section 31 to
extend the presumption of validity so as to claim monopoly or
exclusivity over an individual component of the composite
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device mark. As discussed hereinabove, the statutory
presumption under Section 31 operates only in respect of the
registered mark as a whole, and not in respect of its individual
components, particularly where such components are not
independently registered. It is also well settled that the
presumption under Section 31 is only prima facie in nature
and is rebuttable. In the present case, the plaintiff has not
been able to prima facie demonstrate, through cogent
documentary evidence, that the expression "Shree
Kshetrapal" has been continuously and extensively used by it
in relation to construction and allied activities. Under such
circumstances, merely because the plaintiff holds registration
of a device mark , the benefit of the presumption
under Section 31 cannot be extended to confer exclusive
rights over one of its components, namely, "Shree
Kshetrapal." Therefore, in the considered opinion of this
Court, the reliance placed by the plaintiff on Section 31 of the
Act to assert exclusivity over the said expression is
misconceived and unsustainable in law.
(5) Average Consumer Test and Imperfect Recollection:
It is well settled that the entire scheme of the Trade
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Marks Act, 1999 is premised upon the test of an average
consumer possessing imperfect recollection, with the primary
objective of preventing likelihood of confusion or deception in
the minds of such consumers. While examining a claim of
infringement or passing off, the Court is required to assess
whether the impugned mark is likely to create confusion in
the mind of a person of average intelligence and imperfect
recollection. In the present case, it is equally necessary to
consider the nature of the goods and services forming the
subject matter of the dispute. Admittedly, the activities
undertaken by both the plaintiff and the defendant relate to
construction and real estate development. Unlike ordinary
consumer goods which are readily available for purchase from
a shop, rack, or showroom, purchase of immovable property is
a considered and deliberative transaction, ordinarily
undertaken after due verification, inquiry, and scrutiny of the
project as well as the developer. In such circumstances, even
assuming that a prospective purchaser initially experiences
some degree of confusion upon noticing the expression "Shree
Kshetrapal", such confusion would not automatically
culminate in the purchase of a property from the wrong
developer. A person intending to purchase immovable
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property would invariably undertake further inquiry,
verification of the project details, and interaction with the
concerned developer, during which process it would
immediately become apparent whether the project belongs to
the plaintiff or to the defendant. Therefore, even if a
prospective purchaser approaches either party under a
mistaken impression at the initial stage, such confusion would
be temporary and easily dispelled upon minimal inquiry.
Consequently, the possibility of a consumer ultimately
purchasing property from the defendant under the belief that
it belongs to the plaintiff appears to be highly remote and
improbable. Under these circumstances, this Court is of the
considered view that the likelihood of confusion or deception,
which forms the foundation for grant of relief in trademark
disputes, is not sufficiently established in the present case. A
consumer intending to purchase property from the plaintiff
would, upon due inquiry, clearly ascertain the identity of the
developer and would not inadvertently purchase property
from the defendant. Therefore, applying the average
consumer test in the context of the nature of the services
involved, this Court finds no justification to extend equitable
protection to the plaintiff on the ground of likelihood of
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confusion.
18. Now let us consider the authorities cited by learned
advocates for the parties.
(1) So far as the decision in Marico Limited v. Agro Tech
Foods Limited is concerned, wherein reliance was placed on
Kewal Ashokbhai Vasoya v. Sujanil Chemo Industries, the
Bombay High Court has observed that the question whether
an injunction should be continued or vacated essentially falls
within the judicial discretion of the Court, and such discretion
must necessarily be exercised having regard to the peculiar
facts and circumstances of each case. If the facts of the
present case are examined in light of the aforesaid principle,
this Court finds no justifiable reason to interfere with the
discretion exercised by the trial court in vacating the ex-parte
ad-interim injunction, particularly on the ground of
suppression of material facts. In trademark litigation, where a
defence under Section 34 of the Trade Marks Act is available
against the statutory rights under Section 28, a plaintiff who
seeks equitable relief is under a duty to disclose all material
facts, including the prior use of the mark by the defendant. In
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the present case, the plaintiff was fully aware that the
defendant had acted as a joint developer/partner in certain
schemes where the expression "Shree Kshetrapal" was jointly
used, and therefore such fact was a crucial and material
circumstance. The deliberate omission to disclose this fact
clearly justified the trial court in vacating the ex-parte ad-
interim relief. Another significant suppression, which weighed
both with the trial court as well as this Court, pertains to the
non-disclosure of the proceedings before the Trade Marks
Registry, where the plaintiff, while meeting the objection
raised under Section 9, had expressly stated that it was
claiming exclusivity only over the device mark as a
whole. This statement clearly demonstrates that the plaintiff
itself was conscious that the expression "Shree Kshetrapal,"
being the name of a deity, was not capable of exclusive
appropriation. In such peculiar circumstances, the authority
relied upon by the plaintiff is of no assistance to its case.
(2) With regard to the decisions in Ramdev Food Products Pvt.
Ltd. v. Arvindbhai Rambhai Patel and Patel Field Marshal
Agencies v. P.M. Diesels Ltd., it deserves to be noted that both
the judgments arose under the provisions of the erstwhile
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Trade and Merchandise Marks Act, 1958. In view of the
recent pronouncement of the Supreme Court in Pernod Ricard
India Pvt. Ltd. v. Controller of Patents and Designs, the
observations made in Ramdev Food Products to the effect that
the word "Ramdev" constituted the dominant feature of the
mark would operate primarily within the framework of the
earlier statutory regime.
Similarly, the judgment in Patel Field Marshal Agencies
cannot be interpreted to mean that a civil court, while dealing
with an interlocutory application, must invariably grant
interim relief merely because the plaintiff is the proprietor of
a registered trademark. Registration confers only prima facie
validity, and the civil court is not precluded from examining
the issue while deciding an application for interim injunction
in a suit for infringement or passing off. In the present case,
the dispute is not regarding the validity of the registered
device mark itself; rather, the controversy is whether
such registration entitles the plaintiff to claim exclusivity over
one of its components, namely "Shree Kshetrapal."
(3) Insofar as the decision in K.R. Chinna Krishna Chettiar v.
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Sri Ambal & Co. is concerned, it must again be borne in mind
that the said judgment arose under the earlier statutory
regime. Under the present Trade Marks Act, 1999, Section 9
embodies a clear legislative policy prohibiting the
monopolization of generic, descriptive, or commonly used
expressions. The legislative intent is that such expressions
must remain available for public use, unless it is
demonstrated through convincing evidence that the
expression has acquired a secondary meaning through long
and exclusive use. In the present case, the plaintiff has failed
to produce any material demonstrating that the expression
"Kshetrapal" has acquired a secondary meaning identifying
the plaintiff's services. Even the sales figures relied upon by
the plaintiff, ranging approximately between Rs.42 to Rs.45
lakhs during the relevant period, cannot reasonably establish
that the word mark "Kshetrapal" has come to exclusively
denote the plaintiff's services in the construction field.
Significantly, the plaintiff obtained registration of its device
mark as "proposed to be used", without asserting
any prior use. Hence, the decision in K.R. Chinna Krishna
Chettiar is clearly distinguishable and not applicable.
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(4) As regards the decision of this Court in New Narmada
Divya Jyoti Impex Trading v. Divyan Mahendra Singhvi, the
injunction was confirmed in favour of the plaintiff therein
because the defendant's logo/device mark as a whole was
deceptively similar to the plaintiff's registered logo, and the
plaintiff had established substantial business turnover running
into crores of rupees over several years. In the present case,
however, the dispute is not one of similarity between two
device marks. Rather, the plaintiff seeks to claim exclusivity
over the expression "Shree Kshetrapal," which forms only a
component of its registered device mark. Moreover, the
plaintiff has failed to establish through credible evidence that
the said expression has acquired secondary meaning in the
real estate market. Hence, the said judgment does not assist
the plaintiff.
(5) Similarly, the decision in Under Armour Inc. v. Aditya Birla
Fashion and Retail Ltd. is clearly distinguishable. In the
present case, at the stage of registration of the device mark
, the plaintiff itself stated before the Trade Marks
Registry, in response to the objection under Section 9, that it
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was claiming exclusivity only over the device mark as a whole.
The objection raised by the Registrar related specifically to
the word "Kshetrapal," being a common and religious
expression. Having secured registration of the composite
device mark on that basis, the plaintiff cannot now seek
exclusivity over the individual component "Kshetrapal," unless
it establishes through convincing evidence that the said
expression has acquired a secondary meaning, which it has
failed to do.
(6) With regard to the decision in Torrent Pharmaceuticals
Ltd. v. Alkem Laboratories Ltd., it must be noted that the
dispute therein concerned pharmaceutical products, where
the court exercised greater vigilance owing to the potential
implications on public health. In such cases, even a slight
likelihood of confusion between two marks may have serious
consequences. In contrast, the present dispute pertains to
construction and real estate services, where the consumer
decision-making process involves detailed inquiry and
deliberation. The goods or services involved are not items that
can be casually picked up from a shop or showroom.
Therefore, the ratio of the aforesaid decision cannot be
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applied in a straight-jacket manner to the present case.
(7) In Midas Hygiene Industries Pvt. Ltd. v. Sudhir Bhatia, the
Supreme Court observed that in cases of trademark
infringement, injunction normally follows, particularly where
the adoption of the mark appears dishonest. While there can
be no dispute with the said proposition, the facts of the
present case demonstrate that it is the plaintiff who has
approached the Court with suppression and misleading
statements. Even on merits, the plaintiff has failed to establish
that the expression "Shree Kshetrapal" has acquired
secondary meaning in relation to construction services.
Consequently, the ratio of the said decision is inapplicable.
(8) In Hindustan Pencils Pvt. Ltd. v. India Stationery
Products Co., the Court protected the mark because the
plaintiff had established substantial goodwill and reputation.
In the present case, however, the plaintiff has failed to
demonstrate that the expression "Shree Kshetrapal" has
attained reputation or market recognition in the real estate
sector. No material such as consumer surveys, brand
recognition studies, or independent market references has
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been produced. Consequently, the said decision is of no
assistance.
(9) In SIA Gems and Jewellery Pvt. Ltd. v. Prashant R. Shah,
the Court observed that even a common word may be
registered when used in a distinctive stylized form. In the
present case, however, the dispute does not concern the
device mark as a whole but rather the plaintiff's
claim to exclusivity over the individual component "Shree
Kshetrapal." Since the said expression is a common religious
name, objectionable under Section 9 unless secondary
meaning is proved, the said decision is not applicable.
(10) The decision in Jagdish Sweets and Farsan v. Jagdish
Foods Pvt. Ltd. also stands on a different footing, as the
plaintiff therein had established goodwill and reputation
sufficient to justify grant of injunction. In the present case, the
plaintiff has failed to establish that the expression "Shree
Kshetrapal" has acquired secondary meaning or market
reputation.
(11) Likewise, the decision in Jagdish Gopal Kamath v. Lime
& Chilli Hospitality Services reiterates that a mark containing
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descriptive elements may still be protected if the mark as a
whole has acquired distinctiveness and goodwill. However, in
the present case the plaintiff's device mark was
registered only in 2023 with the notation "proposed to be
used," and there is no cogent evidence demonstrating that the
component "Shree Kshetrapal" has independently acquired
distinctiveness.
(12) As regards Eduspark International Pvt. Ltd. v. Laxmi
Publications (P) Ltd., the factual matrix therein is entirely
different, and therefore the ratio of the said decision cannot
be applied to the peculiar facts of the present case.
(13) Finally, in Nirav Nimni Corporation v. M/s. Nirav
Enterprises, the plaintiff had established both long-standing
registration and prior use dating back several decades, along
with copyright protection. In the present case, the plaintiff's
registration of the device mark is of recent origin
(2023) and is expressly stated to be "proposed to be used." No
evidence of prior reputation or secondary meaning has been
demonstrated. Hence, the said decision is also
distinguishable.
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Conclusion
19. In view of the foregoing discussion, this Court finds no
infirmity in the impugned order passed by the trial court in
rejecting and vacating the interim relief. The discretion
exercised by the trial court cannot be said to be arbitrary or
unreasonable, particularly in light of the serious suppression
of material facts by the plaintiff, including the non-disclosure
that the defendant had jointly used the trade name "Shree
Kshetrapal" with the plaintiff in the projects Shree Kshetrapal
Square-1 and Shree Kshetrapal Square-2, as well as the
plaintiff's own stand before the Trade Marks Registry while
overcoming objections under Sections 9 and 11. This Court is
therefore satisfied that the plaintiff has not approached the
Court with clean hands, apart from this, even on merits as
discussed hereinabove, is not entitled to the equitable relief.
Accordingly, the Appeal from Order stands dismissed with
costs quantified at Rs.50,000/-.
20. Consequently, the Civil Application also stands
dismissed.
(NIRAL R. MEHTA,J)
V.J. SATWARA
