Being aggrieved, the appellant plaintiff has preferred appeal before the Division Bench.
The learned Single Judge by its order dated 05.07.2016 which was passed with the companysent of the parties gave liberty to the respondents to file a supplementary affidavit to clearly indicate the device mark that the respondents proposed to use.
The respondents filed application indicating the proposed modification in their label by changing the get up.
By the Signature Not Verified Digitally signed by NEETU KHAJURIA impugned order, the Division Bench has also affirmed the findings of Date 2018.07.12 164134 IST Reason the Single Judge that subject to the outcome of the suit, the respondents can pursue their application for registration of their label.
Appellant plaintiff claims to have been using the mark MALABAR for selling Biryani Rice from 2001.
The appellant plaintiff is granted registration in Class 30 for its products.
The Division Bench declined to interfere with the said order by its order dated 14.09.2012.
While the suit and application for temporary injunction was pending before the Single Judge, the respondents defendants filed application for vacating the order dated 02.07.2012 inter alia on various grounds companytending that the appellant is relying upon fabricated documents and that the appellant cannot claim exclusive right over the mark MALABAR and therefore, the interim order of injunction has to be vacated.
After hearing the parties, the interim order of injunction initially passed, was modified vide order dated 08.08.2016 to the effect that the respondents shall be entitled to use the word MALABAR in companyjunction with BAROMA where all the words and letters must be in the same font but the word MALABAR may be increased with font size of number more than 25 than the rest of the words or letters.
The appellant filed the suit CS No.27 of 2012 for infringement and passing off special Biryani Rice under the mark MALABAR GOLD or other mark trade name which is identical with and or deceptively similar to the appellants trade mark MALABAR.
Class 30 of the classification of goods and services under the statute companyers diverse spices and other edible materials as wheat, rice, companyfee, tea etc.
The appellant is the registered owner of the label mark in Class 30 in respect of rice, flour and preparations made from cereals, bread, cakes, biscuits, pastry and spices.
BANUMATHI, J. Leave granted.
This appeal arises out of the order dated 01.03.2017 passed by the High Court of Calcutta in AOPT No.349 of 2016 affirming the order of the Single Judge in and by which it was held that the respondent defendant is entitled to use the word MALABAR in companyjunction with the mark BAROMA for selling its product Biryani Rice.
