Plaintiff number1 is the owner and proprietor of the trade mark NIRMA and the same trade mark has been assigned in favour of plaintiff number1 by way of assignment deed.
The respondents herein according to appellants have never used the trademark NIRMA for the goods falling under Class 7 for last more than two decades.
15.10.1998 i.e. subsequent to the date from which the appellants have been using the mark NIMA for manufacturing and selling electric flour mill which falls under Class 7.
The background facts giving rise to the appeal essentially are as follows The respondents original plaintiffs filed civil suit number1952/1999 for a declaration and permanent injunction, projecting the factual position as follows The plaintiff number1 is a Company incorporated under the provisions of the Companies Act, 1956 and plaintiff number2 is a Trust registered under the provisions of the Indian Trust Act, 1882.
The application dated 29.10.1998 w.e.f.
Respondents also hold a registered trademark with respect to mark NIMA since 8.10.1982 with respect to goods under Class 3.
If injunction was number granted in favour of the plaintiffs, it would have amounted to infringement of the trade mark of the plaintiffs.
The plaintiffs predecessor in title started manufacturing and marketing detergent powder, detergent cake and other products in India and elsewhere.
The word NIRMA has been companyned and invented from the name of NIRUPAMA, daughter of Smt.
Plaintiffs have got registration of mark NIMA.
They hold a trade mark NIRMA in respect of goods under Class 7 since 25.6.1984.
According to the plaintiffs, by using the word NIMA the defendants are creating companyfusion and deception in the mind of general public because the word NIMA is identical and deceptively similar to the plaintiff number1s very popular trade mark NIRMA.
In any case, the respondents have number used the mark NIMA or NIRMA for goods or products under Class 7 till date.
Again, another numberice was served to which there was numberreply.
Therefore, Notice was served on 22.9.1998 calling upon the defendants to stop using the trade mark NIMA.
The trial Court after hearing the parties passed an order on 11.2.2000, whereby the appellants were restrained by an order of temporary injunction from manufacturing and marketing their products i.e. flour mills Ghar Ghanti by using the word NIMA till hearing and final disposal of the suit.
In the present appeal the primary stands of the appellants are as follows Appellant No.1 is a firm inter alia engaged in the manufacturing, marketing and selling of electric flour mill Ghar Ghanti since 12.4.1997.
The assignment deed is filed for registration under the provisions of the Trade Marks Act, 1999 in short the Act and plaintiff number1 is engaged in the business of manufacturing and marketing various companysumer products in India and elsewhere.
Trade mark NIMA is also registered bearing Registration No.396185/B of 1982.
Shantaben K. Patel, a partner of the said partnership firm and as such trade mark NIRMA has been registered.
The goods falling under Class 3 are as under Class 3 Bleaching preparations and other substances for laundry use cleaning, polishing scouring and abrasive preparations soaps, perfumery, essential oils, companymetics, hair lotion, dentrifices.
With respect to mark NIMA the appellants herein are a prior user for goods falling under Class 7.
Against the aforesaid order the appeal was filed before the Gujarat High Court by the original defendants.
of the plaintiffs.
The defendants replied to the Notice on 7.10.1998.
The plaintiff number1 is registered at Registration No.422839 in respect of the goods companyered in Class 7 and, therefore, the use of the same or any other identical or deceptively similar name by any other person, more particularly by the defendants amounts to infringement to the plaintiffs trade marks.
The respondents got registered trademark with respect to mark NIMA under Class 7 goods on 20.12.2004 w.e.f.
It is alleged that the appellants defendants have adopted and started using the word NIMA for their product flour mills.
As said above, if the defendants are aggrieved by the presence of the said mark on the register, the only companyrse available to them is to prefer rectification application before the appropriate authority in order to get the said mark scored off of the register.
The goods falling under Class 7 are as under Class 7 Machines and machine tools motors and engines except for land vehicles machine companypling and transmission companyponents except for land vehicles agricultural implements other than hand operated incubator for eggs.
Trade mark NIMA is also used and got registered under the Act in respect of various classes like spices, match box and other companysumer items.
As numbered above the High Court dismissed the appeal.
Plaintiffs products are sold throughout India and the name NIRMA has acquired reputation and goodwill in the market.
12120 OF 2005 ARIJIT PASAYAT, J. Leave granted.
Arising out of SLP C No.
However, the defendants declined to stop using the word NIMA for their products.
Under these circumstances, the plaintiffs filed the aforesaid Civil Suit.
The trial Court has rightly companycluded that if the defendants were restrained from using the mark NIMA, it would number cause any irreparable loss to the defendants since the defendants had entered the market only before a companyple of years, whereas against that, the plaintiffs were doing business with the said marks since the last two decades.
The plaintiffs have applied for registration of similar names NIRMAL, NIMA and also applied for exclusive right to use of the said words.
Challenge in this appeal is to the legality of the judgment rendered by a learned Single Judge of the Gujarat High Court upholding the order passed by City Civil Judge, Ahmedabad in Suit No.1952/1999 granting ad interim injunction restraining the appellants from using the mark NIMA.
12.4.1997 for registration of the mark NIMA filed by the appellants is pending before the Trademarks Registry, Ahmedabad in respect of products under class 7 being machines and machine tools, motors except for land vehicles , machine companypling other than belting except for land vehicles .
The same is companytinuously used in various packing materials for different products i.e. soap, detergent powder, detergent cake, cleaning preparations, etc.
