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Sec.35 of Trade Marks Act, 1999. – Suit for injunction restraining the defendant from doing business in the same surname of the plaintiff – Lower court granted interim injunction – Apex court held that Section 35 of the Act permits anyone to do his business in his own name in a bona fide manner. In the instant case, it is not in dispute that the defendants are doing their business in their own name and their bona fides have not been disputed. It is also not in dispute that the plaintiff and defendants are related to each other and practically all the family members are in the business of jewellery. We have perused the hoardings of the shops where they are doing the business and upon perusal of the hoardings we do not find any similarity between them. In our opinion, looking at the provisions of Section 35 of the Act, there is no prima facie case in favour of the plaintiff and therefore, the defendants could not have been restrained from doing their business. We, therefore, quash and set aside the impugned order granting interim relief in favour of the plaintiff and the appeal is allowed with no order as to costs.= CIVIL APPEAL NO.7191 OF 2014 (Arising out of SLP(C)No.9942 of 2013) Precious Jewels & Anr. … Appellants Versus Varun Gems ..Respondent = 2014 – Aug.Part – http://judis.nic.in/supremecourt/filename=41802

 Sec.35 of Trade  Marks  Act,  1999. – Suit for injunction restraining the defendant from doing business in the same surname of the plaintiff – Lower court granted interim injunction – Apex court held that Section 35 of  the  Act  permits  anyone  to  do  his business in his own name in a bona fide manner.  In the instant case, it  is not in dispute that the defendants are doing their  business  in  their  own name and their bona fides have  not  been  disputed.   It  is  also  not  in dispute that the plaintiff and defendants are  related  to  each  other  and practically all the family members are in the business of jewellery. We have perused the  hoardings  of  the  shops  where  they  are  doing  the business and upon perusal of the hoardings we do  not  find  any  similarity between them. In our opinion, looking at the provisions of Section 35 of  the  Act,  there is no prima facie case  in  favour  of  the  plaintiff  and  therefore,  the defendants could not have been restrained from  doing  their  business.   We, therefore, quash and set aside the impugned order  granting  interim  relief in favour of the plaintiff and the appeal is allowed with  no  order  as  to costs.=

As the suit is pending for its final disposal and we  are  merely  concerned

with an interlocutory order, without expressing any opinion, we are  of  the

view that the interlocutory order passed by the Court below is not just  and

proper in view of the provisions of Section 35 of the Act.

As stated hereinabove, Section 35 of  the  Act  permits  anyone  to  do  his

business in his own name in a bona fide manner.  In the instant case, it  is

not in dispute that the defendants are doing their  business  in  their  own

name and their bona fides have  not  been  disputed.   It  is  also  not  in

dispute that the plaintiff and defendants are  related  to  each  other  and

practically all the family members are in the business of jewellery.

We have perused the  hoardings  of  the  shops  where  they  are  doing  the

business and upon perusal of the hoardings we do  not  find  any  similarity

between them.

In our opinion, looking at the provisions of Section 35 of  the  Act,  there

is no prima facie case  in  favour  of  the  plaintiff  and  therefore,  the

defendants could not have been restrained from  doing  their  busines.   We,

therefore, quash and set aside the impugned order  granting  interim  relief

in favour of the plaintiff and the appeal is allowed with  no  order  as  to

costs.

We clarify that we  have  only  expressed  our  prima  facie  view  and  the

observations, if any, made in this judgment shall not be  treated  as  final

and the trial Court shall decide the case  on  the  basis  of  the  evidence

which might be adduced before it and on the facts of the case.

2014 – Aug.Part – http://judis.nic.in/supremecourt/filename=41802

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