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2013 (11) TMI 786 - HC - Companies LawTrademark infringement - Ownership of trademark - Defendants claims to be the registered owner of Plaintiff's trademark PTA and PATTA - Held that:- As regards the plaintiff”s right in the trademark PATTA is concerned. the same is not disputed by the defendant, who claims no right in it or user thereto. Consequently, the interim injunction qua the trademark PATTA is made absolute till the disposal of the suit. However, with regard to the trademark PTA, the claim of the plaintiff is that the plaintiff is embossing the same on the products. Learned counsel for defendant No.1 has taken me through the booklets on screws and print out from the websites of the plaintiff of its products i.e. document filed by the defendant from pages 162 to 210 which have been admitted by the plaintiff. In none of the booklets the screws show the mark of PTA embossed on the heads of the screws. It is evident from the record that in the plaint the plaintiff has misstated facts. It is stated that in relation to its trademark PTA the registration applications are pending before the Trade Mark Authority. The present suit was instituted on 30th May, 2011 by which time the applications of the plaintiff No. 1870842 had already been rejected. Even the application filed by Kanta Aggarwal on behalf of the sister concern i.e. M/s. RSA Fastners had been rejected. Further, in the application No. 1898926 the date of user was shown to be “proposed to be used” and it was not claimed that the trademark was being used. There is no dispute that the defendant No.1 is the registered owner of the trademark PTA and has been selling its goods since the year 2002. Honesty of adoption at the initial stage itself has to be established to take benefit of concurrent registration under Section 12 (3) of the Act. If the user at the inception is dishonest, subsequent concurrent user will not purify the dishonest intention. Commercial honesty at the initial stage of adoption is required. What is protected is innocent use of a mark by two or more persons unknown to each other and unaware of the mark used by the other. The onus and burden is on the defendant to show that the user and adoption at the initial stage was honest. Further where an alleged infringer had built up the trade with the specific knowledge of the proprietor, the prejudice suffered by the infringer was a relevant factor and an additional circumstance to deny injunction. Plaintiff is not registered trademark holder of the trademark PTA in India. The only invoice dated 13th October, 2004 relating to the use of screws with mark PTA embossed on the heads related to the defendant No. 2, which according to the defendants were customized goods manufactured from them. Indubitably while deciding a dispute regarding a trademark not only the rival claims of the parties are a relevant consideration, but the fact that an honest consumer of goods and service is not deceived has to be equally borne in mind. Further admittedly the plaintiff in its application has stated that it proposes to use the mark PTA. In none of the advertisement, folders and the websites print out which have been admitted by the plaintiff during admission/denial of the documents the mark PTA has been found to be embossed on its products. The plaintiff has not been able to prove itself to be the prior user of the trademark PTA as against which the defendant No.1, who is owner of the trademark PTA. Consequently, the applications are disposed of confirming the ad interim ex parte injunction against the defendants qua the trademark PATTA, however, vacating the same qua the trademark PTA - Decided in favour of appellant.
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