Karnataka High Court: A Single Judge Bench comprising of L. Narayana Swamy, J. dismissed a miscellaneous first appeal while vacating the injunction passed against the respondent prohibiting him from using the trademark ‘PATIL FRAGRANCES’.
The appellant filed a suit against the respondent for infringement and passing off its trademark and trade name ‘PATIL AND PATIL PARIMALA WORKS’ by using identical and deceptively similar trade name. An application for interim injunction was also filed to restrain the respondent from using the name ‘PATIL FRAGRANCES’ during pendency of the suit, which was granted. Thereafter, the respondent too filed an IA for vacating the injunction which was allowed and thereby the injunction was vacated. The appellant filed the instant appeal impugning the order passed by the XVII Additional City Civil Judge vacating the injunction granted initially against the respondent.
The High Court, in order to decide the appeal, weighed the matter to find out in whose favour lies the balance of probabilities. The Court found that the appellant and the respondent belonged to the same family; they used the same surname; the respondent was a former employee and the brother of the appellant; various members of the family use the surname ‘PATIL’ for conduct of their business. The credential of the respondent having the same name was verified by various government documentary proofs. Relying on Section 35 of the Trade Marks Act, the Court held that even a registered user or a registered trademark proprietor cannot interfere with the bona fide use by a person of his own name. Accordingly, the Court held that it was not a case of infringement of trade mark, but it was a clear case of bona fide use of his name by the respondent. In such circumstances, the Court dismissed the appeal and upheld the impugned judgment vacating the injunction passed against the respondent. [Somashekar P. Patil v. D.V.G. Patil,2018 SCC OnLine Kar 637, dated 08-05-2018]
