The Hindu Business Line : HC can restrain use of trademark by subsequent user

THE Madras High Court has held that merely because an application for registration of a trademark was pending before the appropriate authority, it could not be said that the Court could not entertain an injunction application restraining the use of the trademark by the subsequent user.

Mr Justice K. Govindarajan, while granting an interim injunction prayed for by the applicant, the Coimbatore-based Aqua Pump Industries, restraining the respondent, Bharatchai Govindabhai Patel, Rajkot, from using the trademarks `TEXMOON' or `TEXMO' for sale of submersible pumps or other pumps and motors, said that the applicants were entitled for interim injunction.

According to the order, the first applicant (Aqua Pump Industries) was using the trademark `TEXMO' from 1974, and the second applicant (Aquasub Engineering of Coimbatore) was using the same from 1982. The trademark was registered with the Registrar of Trade Mark in 1976.

At the instance of the applicants, by an order dated April 20, 1998, they had been permitted to use the trademark separately.

Stating that the respondent was trying to sell the submersible pumps and other pumps using the trademark `TEXMOON', the applicants had come forward with the present plea.

The Judge said that he was of the opinion that the trademark, which was being used by the respondent, was identical and phonetically similar to the trademark of the applicants and thereby creates confusion in the minds of the persons who wanted to purchase the products.

On behalf of the respondent, it was contended that the applicants were not the owners of the trademark, and hence they could not sustain the applications praying for grant of interim injunction. Their application, the respondent submitted, for registration was pending before the concerned authority, and the applicants had filed opposition to the said application. Hence, in the meantime, the interim order need not be granted.

The Judge said that merely because the application filed by the respondent was pending, it could not be said that this Court could not entertain the injunction applications. Hence, the submission of the respondent that the injunction applications need not be entertained since the application before the concerned authority filed by him was pending, could not be sustained.

The Judge noted that the respondent was a subsequent user, namely from 2001.

He was using the trademark `TEXMOON', which appeared to be similar and identical to the trademark being used by the applicants.

Prima facie, the trademark being used by the respondent was identical and phonetically similar to that of the applicants.

Hence, interim injunction as prayed for was granted.

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