Dismissed

Anupam Patni Transport Corporation v. Anupam Transport Corporation

Gujarat HC5 Feb 2020AO/144/2019

Case brief

AI extract

What is this about?

Appeal rejected against injunction restraining appellant from using the "Anupam" mark. Court held respondent established prior use since 1992 despite lack of assignment deed from sister concern. Appellant failed to prove prior user, making injunction proper to prevent passing off in same transportation business.

What did the court decide?

Appeal rejected; injunction order against appellant's use of "Anupam" mark stands.

Anupam Patni Transport Corporation Vs Anupam… — Civil Procedure and Limitation | Gujarat HC (2020)

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C/AO/144/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/APPEAL FROM ORDER NO. 144 of 2019

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========================================================== ANUPAM PATNI TRANSPORT CORPORATION Versus ANUPAM TRANSPORT CORPORATION

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==========================================================

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Appearance:

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DEVANGI B SOLANKI(8888) for the Appellant(s) No. 1 MR SR YADAV(2395) for the Appellant(s) No. 1 MAUNIL G YAJNIK(9346) for the Respondent(s) No. 1

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==========================================================

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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI

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Date : 05/02/2020

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ORAL ORDER

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Order dated 01.11.2018 rendered by City Civil Court, Ahmedbad

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below Exh. 7 in Civil Suit No. 626 of 2018 issuing the injunction against

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the opponent restraining it to use the mark “Anupam” in his transportation business is sought to be assailed in this appeal from order.

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On consideration of the rival submissions, it transpires that the appellant is an ex employee of the sister concern of the opponents. The sister concern of the opponent claimed to be using the said trade mark. It is the case of the opponent that it had been using the said mark since 1992 in his transportation business. The case was sought to be made good by relying upon the documentary evidence on perusal of which,

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Page 1 of 3

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C/AO/144/2019 ORDER

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the court below came to the conclusion that use of the mark “Anupam”

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by opponent was since 1992. When pointedly asked, learned counsel for the appellant was unable to dispute the said documentary evidence. The argument however is that in absence of assignment deed by sister concern to the opponent, the opponent had no right to bring the suit for passing off. The submission is misconceived inasmuch as is prior user of the mark is pivot to consideration of action of passing off and when deceptive similarity in their mark is pointed out, the prima facie case is made out.

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Learned counsel for the appellant contended that the word “Anupam” is not unique but is a generic name being used by various companies. It is however required to be appreciated that the business of the two entities is the same i.e transportation and the appellant admittedly was the employee of the sister concern of the opponent and thus he would have been in contact with the customers of the sister concern of the opponent and by use of word “Anupam” in his title of the business, there would be obvious passing off since the customers may mistake the business of the appellant as that of the opponent. Thus in the peculiar facts of the case even if the word “Anupam” is held to be a generic name, the possibility of passing off on the above count cannot be ruled out.

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Page 2 of 3

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C/AO/144/2019 ORDER

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It was pointed out that the appellant is also permissive user of the

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same mark; however when pointedly asked, the learned counsel was unable to make the case good that the appellant was a prior user. It may be reiterated that one of the important considerations for an injunction in such a case would be a prior use and deceptively similar mark and therefore notwithstanding the appellant's permissive use, if any, in absence of his being a prior user, there is no question of interfering with the impugned order.

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For the foregoing reasons the appeal must fail and is rejected.

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(G.R.UDHWANI, J)

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niru*

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Page 3 of 3

Anupam Patni Transport Corporation v. Anupam Transport Corporation

Case brief

What is this about?

What did the court decide?

Anupam Patni Transport Corporation v. Anupam Transport Corporation

Case brief

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