Mr. Anil Gopalji Thacker vs Mr. Davda Jaydeepkumar Jagdishchandra on 16 March, 2026

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    Gujarat High Court

    Mr. Anil Gopalji Thacker vs Mr. Davda Jaydeepkumar Jagdishchandra on 16 March, 2026

                                                                                                                      NEUTRAL CITATION
    
    
    
    
                                C/AO/207/2025                                    CAV JUDGMENT DATED: 16/03/2026
    
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                                                                                Reserved On   : 16/12/2025
                                                                                Pronounced On : 16/03/2026
    
                                         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
                                                  R/APPEAL FROM ORDER NO. 207 of 2025
    
                                                                   With
                                                CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                                                 In R/APPEAL FROM ORDER NO. 207 of 2025
    
                           FOR APPROVAL AND SIGNATURE:
    
    
                           HONOURABLE MR. JUSTICE NIRAL R. MEHTA
    
                           ==========================================================
    
                                         Approved for Reporting                      Yes           No
                                                                                 ✔
                           ==========================================================
                                                   MR. ANIL GOPALJI THACKER
                                                             Versus
                                           MR. DAVDA JAYDEEPKUMAR JAGDISHCHANDRA
                           ==========================================================
                           Appearance:
                           MR HARSHIT TOLIA, SENIOR ADVOCATE WITH MR PRATIK K
                           CHAUDHARY(8359) for the Appellants
                           MR KAMAL B. TRIVEDI, SENIOR ADVOCATE with MR SHIVANG A
                           THACKER(7424) for the Respondent
                           MR AR THACKER(888) for the Respondent(s) No. 1
                           ==========================================================
    
                                CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
    
    
                                                             CAV JUDGMENT
    

    1. The present Appeal from Order under Order XLIII Rule

    1(r) of the Code of Civil Procedure, 1908 (hereinafter referred

    SPONSORED

    to as “the Code”) is directed against the order dated

    12.08.2025 passed by the learned 8th Additional District Judge,

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    Bhuj-Kutch below Exh.5 in Trademark Suit No.1 of 2025

    instituted by the appellant. By the said order, the learned trial

    Court was pleased to reject the application for interim

    injunction preferred by the appellant and consequently,

    vacated the ex-parte ad-interim injunction granted earlier on

    15.05.2025.

    2. The appellant herein is the original plaintiff, whereas the

    respondent herein is the original defendant in the aforesaid

    suit. For the sake of convenience and to avoid any confusion,

    the parties shall hereinafter be referred to in accordance with

    their original status before the trial Court, i.e., as plaintiff and

    defendant.

    Case of the plaintiff :

    3. The case of the plaintiff, as set out in the plaint, is that

    the plaintiff is the adopter, proprietor and user of the device

    mark / trademark and is inter alia engaged in the

    business of construction and renovation of buildings,

    construction and repair works, residential and commercial

    building construction, construction of hotels, restaurants and

    resorts, as well as land development, since the year 2015. It is

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    stated that the plaintiff initially commenced business activities

    at Deesa in District Banaskantha, which have subsequently

    expanded to the District of Kutch.

    3.1 It is further averred that in the year 2015, a partnership

    firm was constituted in the name and style of “Shree

    Kshetrapal Agritech”. Thereafter, in the year 2016, a private

    limited company, namely M/s. Shree Kshetrapal Oil Refinery

    Pvt. Ltd., came to be incorporated. Subsequently, other

    entities, namely Shree Kshetrapal Infrastructure, Shree

    Kshetrapal Building Materials and Shree Kshetrapal Infra

    LLP, were also formed by the plaintiff.

    3.2 According to the plaintiff, in the course of the aforesaid

    business activities, several real estate projects have been

    launched in and around Bhuj-Kutch, including Shree

    Kshetrapal Prime, Shree Kshetrapal Arcade, Shree Kshetrapal

    Commercial and Industrial Park, Shree Kshetrapal Residency,

    Shree Kshetrapal Landmark, Shree Kshetrapal Epitome,

    Shree Kshetrapal Infinity, Shree Kshetrapal Square-1, Shree

    Kshetrapal Square-2 and Shree Kshetrapal Icon.

    3.3 It is the further case of the plaintiff that, with a view to

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    secure protection of its trademark / trade name “Shree

    Kshetrapal”, an application bearing No.6138925 came to be

    filed under the provisions of the Trade Marks Act, 1999 for

    registration of the device mark under Class 37, and

    the said mark has been duly registered by the Registrar of

    Trade Marks. It is also stated that another application bearing

    No.6981533 has been filed for registration of the word mark

    “Shree Kshetrapal”, which is presently pending adjudication.

    3.4 On the strength of the aforesaid registration of the

    device mark , the plaintiff claims entitlement to

    protect the said trademark and restrain any infringement

    thereof. According to the plaintiff, the defendant has

    commenced business activities in May, 2025 under the trade

    name “Kshetrapal Construction”, which, according to the

    plaintiff, is structurally, phonetically and visually similar and

    deceptively identical to the plaintiff’s trademark “Shree

    Kshetrapal”. It is further alleged that upon making inquiries,

    the plaintiff came to learn that the defendant has also filed an

    application for registration of the trademark “Kshetrapal

    Construction”, claiming use thereof since 05.01.2014.

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    3.5 In the aforesaid circumstances, the plaintiff instituted

    Trademark Suit No.1 of 2025 before the learned Civil Court at

    Bhuj-Kutch, seeking, inter alia, the following reliefs:

    “A. The defendant, their successors, servants, agents,
    dealers, stockiest and distributors be restrained
    permanently and perpetually from manufacturing,
    marketing, advertising, selling and/or providing any
    services under the mark “KSHETRAPAL
    CONSTRUCTION” and such other Trademark having
    identical and/or deceptively similar to the plaintiff’s
    Trademark “SHREE KSHETRAPAL” and be further
    restrained from committing act of infringement of the
    registered trademark and passing-off by
    selling/providing their services under the mark
    “KSHETRAPAL CONSTRUCTION” as that of plaintiff’s
    Trademark “SHREE KSHETRAPAL” and be restrained to
    claiming any rights, titles or interests in the mark
    “KSHETRAPAL CONSTRUCTION”.

    B. A decree may be passed against the defendant and
    their properties which can be executed against the
    defendant and in favour of the plaintiff for the
    declaration that the plaintiff is the only proprietor of the
    Trademark “SHREE KSHETRAPAL” and the plaintiff is
    only entitled to provide his services under the
    Trademark “SHREE KSHETRAPAL”.

    C. The defendant may be ordered to produce accounts
    for the sale of its services under the mark
    “KSHETRAPAL CONSTRUCTION” and be directed to pay
    the profits whatsoever derived from sale of such services
    under the illegal use of mark “KSHETRAPAL
    CONSTRUCTION” with interest @18% from the date of
    filing of the suit till realization. The Hon’ble Court be
    pleased to order the defendant to pay the damages on
    basis of reputation and goodwill which is ruined due to
    illegal use of the mark “KSHETRAPAL
    CONSTRUCTION”, as may be deemed fit and proper in
    the interest of justice.

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    D. That the defendant be restrained from disposing of or
    dealing with his asset which may adversely affect the
    plaintiff’s ability to recover damages, cost or other
    pecuniary remedies which may be finally awarded by
    this Hon’ble court to the Plaintiff.

    E. The defendant be restrained from interfering in any
    manner whatsoever with business of the plaintiff, their
    agents, servants, distributors, family and retailers from
    manufacturing, marketing, selling and advertising their
    services by using mark “KSHETRAPAL
    CONSTRUCTION”.

    F. Any other and further relief may be granted looking to
    the facts and circumstances of the case deemed fit, just
    and proper in the interest of justice.

    G. A heavy exemplary cost of the suit may be awarded
    to the plaintiff.”

    3.1 Along with the plaint, an application Exh.5 under Order
    39 Rule 1 and 2 of the Code was also filed seeking, inter alia,
    interim relief, which read, thus;

    “A. Till the pendency and final disposal of the suit, the
    defendant, their successors, servants, agents, dealers,
    stockiest and distributors be restrained by an order of
    ad-interim and temporary and/or Ex-parte injunction
    from manufacturing, marketing, advertising and selling
    and/or offer for sale their services/products under the
    impugned mark “KSHETRAPAL CONSTRUCTION”.

    B. The defendant, their directors, successors, servants,
    agents, dealers, stockiest and distributors be restrained
    till final hearing and disposal of the suit from providing
    their goods/products/services under the mark
    “KSHETRAPAL CONSTRUCTION” and/or such other
    mark being identically, phonetically and/or confusingly
    and/or deceptively similar to the plaintiff’s trademark
    “SHREE KSHETRAPAL” and be further restrained from

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    committing the act of infringement as well as passing off
    the plaintiff’s services /products under the impugned
    Trademark and may further be restrained from claiming
    any rights, titles or interest in the said Trademark.

    C. The Hon’ble Court may further be pleased to restrain
    the defendant from causing interference and obstruction
    in any way, interfering with the sale, marketing, offer for
    sale in any manner, which may adversely affect plaintiff’s
    ability to recover damages, costs or other pecuniary
    remedies which may be finally awarded by this Hon’ble
    court to the Plaintiff.

    D. For ad-interim and interim relief of prayer (C), this
    Hon’ble Court be pleased to appoint the Court Receiver
    or such other person as this Hon’ble Court may deem fit
    and proper, with all powers under Order XL of the Code
    of Civil Procedure
    , 1908, to forcibly enter/visit any
    premises of the defendant at any time of the day or
    night, on any day, including on Sundays and holidays,
    without prior notice, with police help, if so required, and
    for that purpose to break open any lock or latch or door
    and to search, collect, seize, destroy, erase and/or store
    any goods, stationery, letterheads, signage, reprographic
    material, packaging, signboards, hoardings, labels
    and/or other material for advertising, selling or
    marketing any goods/services and/or other material
    featuring bearing the trademark or “KSHETRAPAL
    CONSTRUCTION”.

    E. Any other and further relief as may be deemed just
    and proper looking to the facts and circumstances of the
    case be granted in the interest of justice.

    F. Cost of this application may kindly be awarded to the
    plaintiff.”

    4. The learned trial Court, upon considering the application

    for interim relief, was pleased to grant an ex-parte ad-interim

    injunction in favour of the plaintiff by order dated 15.05.2025

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    against the defendant. However, upon service of notice of the

    said order, the defendant appeared and filed an application

    under Order XXXIX Rule 4 of the Code, seeking vacating of

    the said ex-parte ad-interim injunction. The defendant also

    filed a written statement to the plaint as well as a reply

    opposing the application for interim injunction.

    Case of the Defendant :

    5. The case of the defendant, as emerging from the written

    statement and the reply to the interim application, is that the

    plaintiff has suppressed material facts and made misleading

    statements on oath. According to the defendant, the

    defendant has been carrying on the business of construction

    under the trade name “Kshetrapal Construction” since the

    year 2014.

    5.1 It is further the case of the defendant that from the year

    2017 till April, 2025, the plaintiff and the defendant were

    business partners and had jointly undertaken several

    construction projects, wherein the trade name “Kshetrapal”

    was used by them jointly. It is also alleged that the plaintiff

    has committed a major suppression with regard to the

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    proceedings before the Registrar of Trade Marks. According

    to the defendant, while seeking registration of the device

    mark , the Registrar had raised objections under

    Section 9(1)(b) and Section 11 of the Trade Marks Act, 1999,

    to which the plaintiff had specifically stated that it was

    seeking registration only of the device mark. According to the

    defendant, this crucial aspect has not been disclosed in the

    plaint.

    5.2 It is further contended by the defendant that while

    replying to the objection under Section 11 of the Trade Marks

    Act, the plaintiff had stated before the Registrar that the

    trademark had been adopted in a special and artistic manner,

    and therefore the mark “Shree Kshetrapal” was visually

    distinct. In such circumstances, according to the defendant,

    the plaintiff is precluded from claiming any exclusive right

    over the individual word forming part of the device mark. The

    defendant has also contended that the plaintiff has not

    produced any sale deeds or development permissions, which

    would demonstrate that the projects in question were

    undertaken jointly by the plaintiff and the defendant and that

    the word “Kshetrapal” was being used by them jointly in the

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    course of such business activities.

    5.3 It is further the case of the defendant that the defendant

    has been engaged in the business of construction since the

    year 2014 and has completed several projects by using the

    mark “Kshetrapal”. The defendant has also obtained a PAN

    card in the name of the firm “Kshetrapal Construction” on

    29.05.2021. According to the defendant, several projects were

    undertaken jointly by the plaintiff and the defendant,

    including Shree Kshetrapal Square-1, Shree Kshetrapal

    Square-2, Kshetrapal Reyansh Avenue and Reyansh

    Kshetrapal The Palms. The defendant has also stated that an

    application for registration of its device mark has

    been filed on 28.04.2025, being Trademark Application

    No.6980721 under Class 37, claiming use thereof since

    05.01.2014, which application is presently pending

    adjudication.

    6. The learned trial Court, after considering the pleadings

    of the parties and the documents produced on record, by its

    order dated 12.08.2025 passed below Exh.5 in Trademark Suit

    No.1 of 2025, was pleased to reject the application at Exh.5

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    for interim injunction and vacate the ex-parte ad-interim relief

    granted earlier.

    7. Being aggrieved and dissatisfied with the aforesaid order

    passed by the learned trial Court, the plaintiff has approached

    this Court by way of the present Appeal from Order, seeking,

    inter alia, interim relief in terms of the application at Exh.5.

    8. Heard learned Senior Advocate Mr.Harshit Tolia with

    learned advocate Mr.Pratik Chaudhary for the appellant –

    plaintiff and learned Senior Advocate Mr.Kamal B. Trivedi

    with learned advocate Mr.Shivang Thacker for the respondent

    – defendant.

    9. Learned Senior Advocate Mr.Harshit Tolia for the

    plaintiff, while assailing the impugned order, has made the

    following submissions :

    9.1 It is contended that the learned trial Court has failed to

    properly appreciate the evidence on record in its true letter

    and spirit and has also failed to consider the relevant

    statutory provisions and the settled principles of law

    governing the aspects of prior user, rights of a registered

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    proprietor, similarity of trademarks and public policy.

    According to the plaintiff, such failure has resulted in a

    serious miscarriage of justice.

    9.2 It is further urged that the learned trial Court has

    committed a material error in holding that the plaintiff has

    failed to establish prior use of the trademark “Shree

    Kshetrapal” since the year 2015, without properly

    appreciating the evidence on record. It is submitted that the

    plaintiff’s earlier firm, namely Shri Shetrapal Agritech, was

    not engaged in the construction business and that the spelling

    of the mark adopted by the plaintiff was different. The plaintiff

    contends that the findings recorded by the trial Court in this

    regard are erroneous and have resulted in miscarriage of

    justice.

    9.3 It is also contended that the learned trial Court ought to

    have appreciated that the plaintiff’s firm came to be

    established in the year 2015, and since then the trademarks

    “Shree Kshetrapal” and “Shree Shetrapal”, the essential

    feature being the word “Kshetrapal”, have been continuously

    used by the plaintiff. Therefore, the finding recorded by the

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    trial Court that the plaintiff failed to establish prior use of the

    said mark is, according to the plaintiff, unsustainable in the

    eye of law.

    9.4 The plaintiff has further submitted that the learned trial

    Court ought to have appreciated that since the year 2015, the

    plaintiff has been engaged in various business activities, but

    notwithstanding the change in the nature of business, the

    word “Kshetrapal” has remained a constant feature in the

    plaintiff’s trade name. In such circumstances, according to the

    plaintiff, the trial Court ought not to have adopted a hyper-

    technical approach by drawing a distinction between the

    spellings “Kshetrapal” and “Shetrapal”, particularly when the

    businesses were related.

    9.5 It is also contended that the learned trial Court has

    erred in concluding that the plaintiff had suppressed material

    facts by not disclosing the alleged joint business activity with

    the defendant. According to the plaintiff, the defendant was

    merely a minority investor in specific projects, namely Shree

    Kshetrapal Square-1 and Shree Kshetrapal Square-2, and was

    never a co-owner or proprietor of the trademark “Shree

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    Kshetrapal”. It is submitted that there existed no partnership

    agreement between the plaintiff and the defendant, nor did

    the defendant ever assert any claim of ownership over the

    trademark “Kshetrapal” while acting as an investor in the

    schemes floated by the plaintiff. In such circumstances, the

    trial Court ought to have appreciated that the trademark

    “Shree Kshetrapal” is the trade name of the plaintiff, and that

    the defendant subsequently started using the word

    “Kshetrapal” for the schemes floated by him without the

    permission or consent of the plaintiff and in an unauthorized

    manner.

    9.6 It is further contended that the plaintiff had sufficiently

    established use of the trademark “Shree Kshetrapal” since the

    year 2015 by producing ample documentary evidence on

    record. However, the learned trial Court, according to the

    plaintiff, has committed a serious error in not appreciating

    such evidence in its proper perspective, which has resulted in

    miscarriage of justice.

    9.7 The plaintiff has also contended that the learned trial

    Court ought to have appreciated the well-settled principle that

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    registration of a trademark confers upon the proprietor an

    exclusive right to its use, and that the use of a deceptively

    similar mark, such as “Kshetrapal Construction”, is likely to

    cause confusion among the public. According to the plaintiff,

    it is the prior adopter and user of the trademark “Shree

    Kshetrapal”, and the average consumer associates the word

    “Kshetrapal” exclusively with the plaintiff and its entities. It is

    therefore submitted that permitting the defendant to use the

    impugned mark for its construction schemes would dilute the

    plaintiff’s trademark and would also cause confusion and

    deception among the purchasing public, who may not be able

    to distinguish the real estate schemes of the plaintiff from

    those of the defendant. Hence, it is contended that the

    impugned order passed by the trial Court is contrary to the

    settled principles of law and deserves to be quashed and set

    aside.

    9.8 It is further contended that the learned trial Court has

    attached undue significance to the alleged non-disclosure of

    the fact that the defendant was associated with and was one

    of the investors in certain schemes of the plaintiff. The trial

    Court has, according to the plaintiff, erroneously

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    characterized such non-disclosure as suppression of material

    facts and relied upon the same as a ground to deny equitable

    relief. According to the plaintiff, the dispute in the present

    case pertains to trademark infringement and passing off, and

    not to any partnership dispute between the parties. Therefore,

    the non-disclosure of the defendant’s role as a minority

    investor cannot be treated as material suppression of facts so

    as to disentitle the plaintiff from seeking interim relief.

    9.9 Lastly, it is contended that the learned trial Court ought to

    have appreciated that the plaintiff is the registered proprietor

    of the trademark and has demonstrated a long history of use

    of the mark “Kshetrapal”. According to the plaintiff, it has

    been clearly established that the defendant is using a

    confusingly similar mark in the same line of business, and

    therefore the order vacating the ad-interim relief and

    rejecting the application at Exh.5 is unsustainable in law. It is

    submitted that the balance of convenience lies in favour of the

    plaintiff, and that in the absence of interim relief, the plaintiff

    would suffer irreparable loss to its goodwill and reputation.

    Hence, the plaintiff prays that the impugned order be quashed

    and set aside and that the injunction as prayed for be granted

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    in the interest of justice.

    9.10 To substantiate the aforesaid submissions, learned

    Senior Advocate Mr.Harshit Tolia has placed reliance on the

    following authorities :

    (1) Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia,
    reported in (2004 3 SCC 90.

    (2) Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai
    Patel
    , reported in (2006) 8 SCC 726.

    (3) Hindustan Pencils (P) Ltd. v. India Stationary Products
    Co.
    , reported in 1989 SCC Online Del 34.

    (4) SIA Gems and Jewellery Pvt. Ltd. v. SIA Fashion,
    reported in 2003 SCC Online Bom 498.

    (5) Jagdish Sweets and Farsan v. Jagdish Foods Pvt. Ltd.,
    reported in 2007 SCC Online Guj 32.

    (6) Jagdish Gopal Kamath v. Lime & Chilli Hospitality
    Services
    , reported in 2015 SCC Online Bom 531.

    (7) Torrent Pharmaceuticals Ltd. v. Wockhardt Ltd.,
    reported in (2018) 18 SCC 346.

    (8) Kewal Ashokbhai Vasoya v. Suarabhakti Goods (P) Ltd.,
    reported in 2022 SCC Online Bom 3335.

    (9) Eduspark International (P) Ltd. v. Laxmi Publications (P)
    Ltd.
    , reported in 2023 SCC Online Del 2062.

    (10) Marico Limited v. KLF Nirmal Pvt. Ltd., rendered in IA
    (L) No.26759 of 2023 in COMMIP (L) Suit No.22293 of
    2023 by the Bombay High Court.

    (11) Nirav Nimmi Corporation v. Ashish Traders, rendered in

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    AO No.9 of 2025 by this Court.

    (12) Patel Field Marshal Agencies & Anr. v. P.M. Diesels
    Limited & Anr.
    , reported in (2018) 2 SCC 112.

    (13) K.R. Chinna Krsihna Chaetiar v. Shri Ambal & Co.,
    Madras & Anr.
    , reported in (1969) 2 SCC 131.

    (14) New Narbada Divya Jyoti Impex Trading by Divyan
    Mahendra Singhvi v. Narmada Agrobase Limited,
    rendered in Appeal from Order No.191 of 2025.
    (15) Under Armour.,Inc v. Aditya Birla Fashion & Retail Ltd.,
    rendered in CS (COMM) 41 of 2023 by the Delhi High
    Court.

    9.11 By making the aforesaid submissions, learned advocate

    for the plaintiff urged this Court to allow the present Appeal

    from Order.

    10. Per contra, learned Senior Advocate Mr.Kamal Trivedi

    for the defendant, while supporting the impugned order, has

    made the following submissions :

    10.1 On the other hand, the learned advocate appearing for

    the defendant has supported the impugned order and

    submitted that the learned trial Court was fully justified in

    refusing the interim relief and in vacating the ad-interim

    injunction, particularly on the ground of suppression of

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    material facts and misleading statements made by the

    plaintiff. According to the defendant, two material

    suppressions have been committed by the plaintiff, namely: (i)

    non-disclosure of the proceedings before the Registrar of

    Trade Marks in connection with the plaintiff’s application

    bearing No.6138925 for registration of the device mark

    , and (ii) non-disclosure of the joint business activities

    of the plaintiff and the defendant in relation to the projects

    Shree Kshetrapal Square-1 and Shree Kshetrapal Square-2.

    10.2 It is submitted that the plaintiff had filed an application

    bearing No.6138925 on 06.10.2023 for registration of the

    device mark under Class 37, declaring the same as

    “proposed to be used”. However, in the plaint, the plaintiff has

    asserted that the device mark / trademark “Shree Kshetrapal”

    has been in use since 15.05.2015. It is therefore contended

    that the plaintiff possesses registration only of a device mark,

    and not of a solitary word or stand-alone mark “Kshetrapal”.

    The said registration, according to the defendant, pertains to

    a composite device mark containing several features including

    the words “Shree Kshetrapal”, and therefore the mark is

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    required to be considered as a whole and in its entirety. It is

    further submitted that during the course of the registration

    proceedings, objections were raised by the Registrar under

    Section 9(1)(b) and Section 11 of the Trade Marks Act, 1999.

    In response to such objections, the plaintiff had stated before

    the Registrar that the mark was specifically and artistically

    designed and that the plaintiff was claiming rights only over

    the device mark. However, according to the defendant, these

    crucial aspects have not been disclosed in the plaint and the

    plaintiff has attempted to claim exclusive rights over the

    solitary word “Kshetrapal”, which is otherwise a non-

    distinctive term and also the name of a deity. It is also

    submitted that while replying to the objection under Section

    11, the plaintiff had specifically stated that the mark “Shree

    Kshetrapal” had been adopted in a particular artistic manner,

    making it visually distinct. According to the defendant, the

    suppression of these aspects relating to the objections under

    Sections 9 and 11 constitutes suppression of material facts

    going to the root of the matter, and therefore the learned trial

    Court was justified in drawing an adverse inference against

    the plaintiff.

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    10.3 The defendant has further submitted that the plaintiff

    has also suppressed the fact that the plaintiff and the

    defendant were joint owners / investors / developers in two

    projects, namely Shree Kshetrapal Square-1 and Shree

    Kshetrapal Square-2. According to the defendant, such

    disclosure was highly relevant and material, but the plaintiff

    intentionally failed to disclose the same in the plaint while

    seeking interim relief. It is therefore submitted that the

    learned trial Court was well within its jurisdiction in declining

    to exercise discretionary powers under Order XXXIX Rules 1

    and 2 of the Code.

    10.4 It is further submitted that the documents relating to the

    construction of Shree Kshetrapal Square-1 and Shree

    Kshetrapal Square-2, including the development permissions

    issued for the said projects, along with the documents relating

    to projects undertaken by the defendant under the name

    “Kshetrapal”, such as Kshetrapal Reyansh Avenue and

    Reyansh Kshetrapal The Palms, clearly demonstrate the

    defendant’s use of the mark. Reliance is also placed on the

    affidavit of the engineer, Mr.Mayank Goradia, confirming that

    the defendant has been using the name “Kshetrapal

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    Construction” since 2014, as well as the affidavit of a vendor

    who supplied materials to Kshetrapal Construction. According

    to the defendant, these materials prima facie establish that

    the defendant is the prior user of the mark “Kshetrapal

    Construction”. In contrast, the plaintiff obtained registration

    of the device mark only on 06.10.2023 and in the said

    application had declared the mark as “proposed to be used”,

    without claiming any prior usage. Under such circumstances,

    it is submitted that the plaintiff can at the most claim

    exclusivity over the device mark as a whole, and not

    over any individual component such as the word “Kshetrapal”.

    10.5 It is further contended that the stand taken by the

    plaintiff before the Trade Marks Registry and the stand taken

    before this Court are mutually inconsistent and contradictory,

    thereby amounting to approbation and reprobation. Before the

    Trademark authority, the plaintiff had asserted that

    exclusivity was being claimed only over the device mark

    , whereas before this Court, under the guise of the

    registered device mark, the plaintiff is attempting to claim

    exclusive rights over the word “Kshetrapal”, which according

    to the defendant is impermissible in law. It is therefore

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    submitted that the learned trial Court has rightly declined to

    grant interim relief.

    10.6 It is also submitted that the plaintiff has failed to

    establish prior use of the trade name “Shree Kshetrapal” since

    the year 2015 through any cogent or reliable evidence.

    According to the defendant, the various business entities

    relied upon by the plaintiff, such as Shree Kshetrapal

    Agritech, Shree Kshetrapal Oil Refinery Pvt. Ltd., Shree

    Kshetrapal Infrastructure, Shree Kshetrapal Building

    Materials and Shree Kshetrapal Infra LLP, were not engaged

    in construction activities. It is therefore submitted that mere

    registration of a trademark does not confer an exclusive right

    in a case where the defendant has raised a defence under

    Section 34 of the Trade Marks Act, which recognizes the

    rights of a prior user. On the other hand, according to the

    defendant, prima facie evidence has been produced to

    demonstrate that the defendant has been engaged in

    construction activity since 2014, including third-party

    affidavits and documents relating to projects jointly

    undertaken with the plaintiff such as Shree Kshetrapal

    Square-1 and Shree Kshetrapal Square-2, as well as

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    independent projects such as Kshetrapal Reyansh Avenue and

    Reyansh Kshetrapal The Palms. In such circumstances, it is

    submitted that the impugned order passed by the learned trial

    Court cannot be said to be erroneous, and the present Appeal

    from Order deserves to be dismissed.

    10.7 It is further submitted that the word “Kshetrapal” is non-

    distinctive in character, publici juris, and also the name of a

    deity, and therefore no monopoly can be claimed over the said

    word. The plaintiff’s registration pertains only to a device

    mark, and therefore in view of Section 17 of the Trade Marks

    Act, the plaintiff is not entitled to dissect the mark “Shree

    Kshetrapal” and claim exclusive rights over the word

    “Kshetrapal” alone. According to the defendant, under the

    anti-dissection rule, a registered trademark is required to be

    considered as a composite mark in its entirety and not by

    isolating individual components thereof.

    10.8 It is further contended that the word “Kshetrapal”, being

    a name of a deity and non-distinctive in nature, has become

    publici juris, and several entities are registered under the

    name “Kshetrapal” in relation to different business activities.

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    Therefore, according to the defendant, no exclusivity or

    monopoly can be permitted over the word “Kshetrapal”.

    10.9 Lastly, it is submitted that the defendant is the prior and

    continuous user of the word “Kshetrapal”, and in view of

    Section 34 of the Trade Marks Act, the rights of a prior user

    prevail over those of a subsequent registrant. According to the

    defendant, the record clearly indicates that the plaintiff’s

    device mark was registered only on 06.10.2023 and was

    declared as “proposed to be used”, without citing any prior

    use. In such circumstances, since the defendant has prima

    facie established prior use of the word “Kshetrapal”, the

    learned trial Court was perfectly justified in refusing to grant

    interim relief in favour of the plaintiff.

    10.10 To substantiate the aforesaid contentions, learned

    Senior Advocate Mr.Kamal B. Trivedi has placed reliance on

    the following authorities :

    (1) Wander Ltd. v. Antox India P. Ltd., reported in 1990
    (Supp.) SCC 727.

    (2) S.P. Chengal Varaya Naidu v. Jagannath, reported in
    (1994) 1 SCC 1.

    (3) Lalit Kumar Jain v. Jaipur Traders Corporation Pvt. Ltd.,

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    reported in (2002) 5 SCC 383.

    (4) K.D. Sharma v. Steel Authority of India Ltd., reported in
    (2008) 12 SCC 481.

    (5) Lal Babu Priyadarshi v. Amritpal Singh, reported in
    (2015) 16 SCC 795.

    (6) Nandhini Deluxe v. Karnataka Cooperative Milk
    Producers Federation Ltd.
    , reported in (2018) 9 SCC
    183.
    (7) Ganesh Grains Ltd. v. Shree Ganesh Besan Mill
    ,
    rendered in SLP(C)No.7812 of 2022.

    (8) Pernod Ricard India Pvt. Ltd. v. Karnaveer Singh
    Chhabra
    , reported in 2025 SCC Online SC 1701.

    (9) Bhole Baba Milk Food Industries Ltd. v. Parul Food
    Specialities (P) Ltd.
    , reported in 2011 (121) DRJ 536.

    (10) Vardhman Buildtech Pvt. Ltd. v. Vardhman Properties
    Ltd.
    , reported in 2016 SCC Online Del 4738.
    (11) Aura Synergy India Ltd. v. M/s. New Age False Ceiling
    Co. Pvt. Ltd., reported in 2016 SCC Online Del 892.

    (12) Freudengerg Gala Household Product Pvt. Ltd. v. GEBI
    Products
    , reported in Commercial Appeal No.72 of 2017
    by the Bombay High Court.

    (13) Shree Ganesh Besan Mill v. Ganesh Grains Ltd., reported
    in 2021 SCC Online Cal.3068.

    (14) Pathanjali Ayurved Limited v. Arudra Engineers Pvt.

    Ltd., reported in 2021 SCC Online Mad 5567.
    (15) Kent RO Systems Ltd. v. Gattu Bhai, reported in 2022
    SCC Online Del 791.

    (16) Apollo Parker Construction Equipments Pvt. Ltd. v.

    Amman India Private Limited, rendered in Appeal from

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    Order No.43 of 2022 by this Court.

    (17) Unisn Health Check Up and Diagnostics LLP v. Amman
    India Private Limited, rendered in Appeal from Order
    No.98 of 2024 by this Court.

    (18) Shoban Salim Thakur v. Chaitanya Arora, rendered
    Interim Application (L) No.18278 of 2025 by the
    Bombay High Court.

    (19) S. Syed Mohideen v. P. Sulochana Bai, reported in 2016)
    2 SCC 683.

    (20) DCM Shriram Ltd. v. Amreek Singh Chawla, rendered in
    2025 SCC Online Del 197.

    10.11 By making above submissions, learned Senior Advocate

    Mr.Kamal B. Trivedi urged this Court to dismiss the present

    Appeal from Order.

    11. Having heard the submissions of learned advocates for

    the respective parties and having carefully gone through the

    material produced on record, the question that falls for

    consideration of this Court is – whether the plaintiff is entitled

    to grant of an interim injunction restraining the defendant

    from using the impugned trademark ‘Shree Kshetrapal’ on the

    ground that such use amounts to infringement and/or

    imitation of the plaintiff’s registered device mark, namely,

    ?

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    12. So as to decide the aforesaid question, in my opinion,
    certain provisions of the Trademark Act, 1999, deserve
    threadbare scrutiny. Sections 9, 11, 17, 28, 31 and 34 are
    relevant for the purpose, the same are quoted, thus:

    Section 9. Absolute grounds for refusal of
    registration.–(1) The trade marks–

    (a) which are devoid of any distinctive character, that is to
    say, not capable of distinguishing the goods or services of
    one person from those of another person;

    (b) which consist exclusively of marks or indications
    which may serve in trade to designate the kind, quality,
    quantity, intended purpose, values, geographical origin or
    the time of production of the goods or rendering of the
    service or other characteristics of the goods or service;

    (c) which consist exclusively of marks or indications
    which have become customary in the current language or
    in the bona fide and established practices of the trade,
    shall not be registered:

    Provided that a trade mark shall not be refused
    registration if before the date of application for
    registration it has acquired a distinctive character as a
    result of the use made of it or is a well-known trade mark.

    (2) A mark shall not be registered as a trade mark if–

    (a) it is of such nature as to deceive the public or cause
    confusion;

    (b) it contains or comprises of any matter likely to hurt
    the religious susceptibilities of any class or section of the
    citizens of India;

    (c) it comprises or contains scandalous or obscene matter;

    (d) its use is prohibited under the Emblems and Names

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    (Prevention of Improper Use) Act, 1950 (12 of 1950).

    (3) A mark shall not be registered as a trade mark if it
    consists exclusively of–

    (a) the shape of goods which results from the nature of
    the goods themselves; or

    (b) the shape of goods which is necessary to obtain a
    technical result; or

    (c) the shape which gives substantial value to the goods.

    Explanation.–For the purposes of this section, the nature
    of goods or services in relation to which the trade mark is
    used or proposed to be used shall not be a ground for
    refusal of registration.

    Section 11 – Relative grounds for refusal of
    registration.–(1) Save as provided in section 12, a trade
    mark shall not be registered if, because of–

    (a) its identity with an earlier trade mark and similarity of
    goods or services covered by the trade mark; or

    (b) its similarity to an earlier trade mark and the identity
    or similarity of the goods or services covered by the trade
    mark,

    there exists a likelihood of confusion on the part of the
    public, which includes the likelihood of association with
    the earlier trade mark.

    (2) A trade mark which–

    (a) is identical with or similar to an earlier trade mark;
    and

    (b) is to be registered for goods or services which are not
    similar to those for which the earlier trade mark is
    registered in the name of a different proprietor,

    shall not be registered if or to the extent the earlier trade

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    mark is a well-known trade mark in India and the use of
    the later mark without due cause would take unfair
    advantage of or be detrimental to the distinctive
    character or repute of the earlier trade mark.

    (3) A trade mark shall not be registered if, or to the
    extent that, its use in India is liable to be prevented–

    (a) by virtue of any law in particular the law of passing off
    protecting an unregistered trade mark used in the course
    of trade; or

    (b) by virtue of law of copyright.

    (4) Nothing in this section shall prevent the registration
    of a trade mark where the proprietor of the earlier trade
    mark or other earlier right consents to the registration,
    and in such case the Registrar may register the mark
    under special circumstances under section 12.

    Explanation.–For the purposes of this section, earlier
    trade mark means–

    [(a) a registered trade mark or an application under
    section 18 bearing an earlier date of filing or an
    international registration referred to in section 36E or
    convention application referred to in section 154 which
    has a date of application earlier than that of the trade
    mark in question, taking account, where appropriate, of
    the priorities claimed in respect of the trade marks;]

    (b) a trade mark which, on the date of the application for
    registration of the trade mark in question, or where
    appropriate, of the priority claimed in respect of the
    application, was entitled to protection as a well-known
    trade mark.

    (5) A trade mark shall not be refused registration on the
    grounds specified in sub-sections (2) and (3), unless
    objection on any one or more of those grounds is raised in
    opposition proceedings by the proprietor of the earlier
    trade mark.

    (6) The Registrar shall, while determining whether a

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    trade mark is a well-known trade mark, take into account
    any fact which he considers relevant for determining a
    trade mark as a well-known trade mark including–

    (i) the knowledge or recognition of that trade mark in the
    relevant section of the public including knowledge in
    India obtained as a result of promotion of the trade mark;

    (ii) the duration, extent and geographical area of any use
    of that trade mark;

    (iii) the duration, extent and geographical area of any
    promotion of the trade mark, including advertising or
    publicity and presentation, at fairs or exhibition of the
    goods or services to which the trade mark applies;

    (iv) the duration and geographical area of any registration
    of or any application for registration of that trade mark
    under this Act to the extent that they reflect the use or
    recognition of the trade mark;

    (v) the record of successful enforcement of the rights in
    that trade mark, in particular the extent to which the
    trade mark has been recognised as a well-known trade
    mark by any court or Registrar under that record.

    (7) The Registrar shall, while determining as to whether a
    trade mark is known or recognised in a relevant section of
    the public for the purposes of sub-section (6), take into
    account–

    (i) the number of actual or potential consumers of the
    goods or services;

    (ii) the number of persons involved in the channels of
    distribution of the goods or services;

    (iii) the business circles dealing with the goods or
    services, to which that trade mark applies.

    (8) Where a trade mark has been determined to be well
    known in at least one relevant section of the public in
    India by any court or Registrar, the Registrar shall
    consider that trade mark as a well-known trade mark for

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    registration under this Act.

    (9) The Registrar shall not require as a condition, for
    determining whether a trade mark is a well-known trade
    mark, any of the following, namely:–

    (i) that the trade mark has been used in India;

    (ii) that the trade mark has been registered;

    (iii) that the application for registration of the trade mark
    has been filed in India;

    (iv) that the trade mark–

    (a) is well-known in; or

    (b) has been registered in; or

    (c) in respect of which an application for registration has
    been filed in, any jurisdiction other than India, or

    (v) that the trade mark is well-known to the public at
    large in India.

    (10) While considering an application for registration of a
    trade mark and opposition filed in respect thereof, the
    Registrar shall–

    (i) protect a well-known trade mark against the identical
    or similar trade marks;

    (ii) take into consideration the bad faith involved either of
    the applicant or the opponent affecting the right relating
    to the trade mark.

    (11) Where a trade mark has been registered in good faith
    disclosing the material informations to the Registrar or
    where right to a trade mark has been acquired through
    use in good faith before the commencement of this Act,
    then, nothing in this Act shall prejudice the validity of the
    registration of that trade mark or right to use that trade
    mark on the ground that such trade mark is identical with

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    or similar to a well-known trade mark.

    Section 17 -Effect of registration of parts of a mark.

    –(1) When a trade mark consists of several matters, its
    registration shall confer on the proprietor exclusive right
    to the use of the trade mark taken as a whole.

    (2) Notwithstanding anything contained in sub-section (1),
    when a trade mark–

    (a) contains any part–

    (i) which is not the subject of a separate application by
    the proprietor for registration as a trade mark; or

    (ii) which is not separately registered by the proprietor as
    a trade mark; or

    (b) contains any matter which is common to the trade or
    is otherwise of a non-distinctive character,

    the registration thereof shall not confer any exclusive
    right in the matter forming only a part of the whole of the
    trade mark so registered.

    Section 28-Rights conferred by registration.–(1)
    Subject to the other provisions of this Act, the registration
    of a trade mark shall, if valid, give to the registered
    proprietor of the trade mark the exclusive right to the use
    of the trade mark in relation to the goods or services in
    respect of which the trade mark is registered and to
    obtain relief in respect of infringement of the trade mark
    in the manner provided by this Act.

    (2) The exclusive right to the use of a trade mark given
    under sub-section (1) shall be subject to any conditions
    and limitations to which the registration is subject.

    (3) Where two or more persons are registered proprietors
    of trade marks, which are identical with or nearly
    resemble each other, the exclusive right to the use of any
    of those trade marks shall not (except so far as their
    respective rights are subject to any conditions or

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    limitations entered on the register) be deemed to have
    been acquired by any one of those persons as against any
    other of those persons merely by registration of the trade
    marks but each of those persons has otherwise the same
    rights as against other persons (not being registered
    users using by way of permitted use) as he would have if
    he were the sole registered proprietor.

    Section 31 Registration to be prima facie evidence
    of validity.–

    (1) In all legal proceedings relating to a trade mark
    registered under this Act (including applications under
    section 57), the original registration of the trade mark
    and of all subsequent assignments and transmissions of
    the trade mark shall be prima facie evidence of the
    validity thereof.

    (2) In all legal proceedings as aforesaid a registered
    trade mark shall not be held to be invalid on the ground
    that it was not a registrable trade mark under section 9
    except upon evidence of distinctiveness and that such
    evidence was not submitted to the Registrar before
    registration, if it is proved that the trade mark had been
    so used by the registered proprietor or his predecessor in
    title as to have become distinctive at the date of
    registration.

    Section 34-Saving for vested rights.–Nothing in this
    Act shall entitle the proprietor or a registered user of
    registered trade mark to interfere with or restrain the use
    by any person of a trade mark identical with or nearly
    resembling it in relation to goods or services in relation to
    which that person or a predecessor in title of his has
    continuously used that trade mark from a date prior–

    (a) to the use of the first-mentioned trade mark in relation
    to those goods or services by the proprietor or a
    predecessor in title of his; or

    (b) to the date of registration of the first-mentioned trade
    mark in respect of those goods or services in the name of
    the proprietor of a predecessor in title of his;

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    whichever is the earlier, and the Registrar shall not
    refuse (on such use being proved) to register the second
    mentioned trade mark by reason only of the registration
    of the first-mentioned trade mark.”

    Legal Analysis :

    13. A plain reading of Section 9 of the Trade Marks Act,

    1999 reveals that it provides for absolute grounds for refusal

    of registration of a trademark. The provision seeks to ensure

    that only marks which are distinctive and legally permissible

    are entered in the register. It prohibits registration of marks

    which are devoid of distinctive character, descriptive of the

    goods or services, or customary in the trade, as such

    expressions are considered part of the public domain and

    must remain available for use by traders. At the same time,

    the provision recognizes that even such marks may become

    registrable if they have acquired distinctiveness through

    extensive and continuous use, thereby enabling the public to

    associate the mark with a particular source. The provision

    further bars registration of marks whose use would be

    deceptive, scandalous, obscene, or offensive to religious

    sentiments, or otherwise prohibited by law, thereby

    safeguarding public interest and morality. It also restricts

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    registration of certain functional or value-giving shapes of

    goods, so as to prevent traders from securing a perpetual

    monopoly over features inherent in the goods themselves.

    Thus, Section 9 operates as a threshold filter, ensuring that

    only marks capable of functioning as indicators of trade origin

    are registered.

    13.1 A plain reading of Section 11 of the Act indicates that it

    prescribes relative grounds for refusal of registration,

    primarily intended to protect earlier trademark rights and to

    prevent consumer confusion. Unlike Section 9, which deals

    with the inherent distinctiveness of a mark, Section 11

    examines the relationship between the proposed mark and

    existing marks. The provision bars registration where the

    mark sought to be registered is identical with or deceptively

    similar to an earlier mark in respect of similar goods or

    services, if such similarity is likely to cause confusion or

    association in the minds of the public. The provision also

    extends protection to well-known trademarks, by prohibiting

    registration of identical or similar marks even in respect of

    dissimilar goods or services, where such use would take unfair

    advantage of, or dilute, the reputation of the well-known

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    mark.

    13.2 Section 17 of the Act governs the effect of registration of

    a composite trademark consisting of several components. The

    provision clarifies that registration confers an exclusive right

    in the trademark as a whole, and not necessarily in respect of

    each individual component forming part of the mark. Sub-

    section (2) further restricts such exclusivity by providing that

    registration shall not confer any exclusive right in respect of

    any part of the mark which is not separately registered or is

    not independently capable of registration, such as elements

    that are descriptive, generic or otherwise non-distinctive. The

    legislative intent underlying Section 17 is to prevent the

    proprietor from dissecting a composite mark and claiming

    monopoly over common or non-distinctive elements. The

    provision, therefore, strikes a balance between protecting the

    proprietor’s rights in the registered composite mark and

    ensuring that descriptive or common elements remain

    available for legitimate use by others.

    13.3 A plain reading of Section 28 of the Act indicates that

    registration of a trademark confers upon the registered

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    proprietor a statutory right to exclusive use of the mark in

    relation to the goods or services for which it is registered. The

    provision recognizes two principal rights, namely: (i) the

    exclusive right to use the trademark in the course of trade,

    and (ii) the right to seek legal remedies against infringement.

    However, the exclusivity flowing from registration is not

    absolute and remains subject to other provisions of the Act,

    including prior user rights, conditions attached to

    registration, or limitations arising from the nature of the mark

    itself. Sub-section (2) further clarifies that where identical or

    deceptively similar marks are registered in favour of different

    proprietors, such registration does not entitle one registered

    proprietor to claim exclusivity against the other, though each

    may enforce his rights against third parties. Thus, Section 28

    establishes the statutory proprietary rights arising from

    registration, while simultaneously recognizing the statutory

    limitations and coexistence of similar registered marks within

    the framework of trademark law.

    13.4 A plain reading of Section 31 of the Act suggests that

    registration of a trademark constitutes prima facie evidence of

    its validity. The Legislature has clarified that such registration

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    carries only evidentiary value and not conclusive proof of

    validity. The validity of a registered trademark may still be

    challenged if it is shown that the mark did not possess the

    requisite distinctiveness or was otherwise not entitled to

    registration at the time it was registered. Thus, the

    presumption created under Section 31 is rebuttable in nature,

    and the registration remains subject to scrutiny on legally

    permissible grounds.

    13.5 A plain reading of Section 34 of the Act embodies the

    fundamental principle that prior user prevails over

    subsequent registration. The provision protects the vested

    rights of a person who has continuously and bona fide used a

    trademark from an earlier point of time, even if another

    person subsequently obtains registration of the same or a

    similar mark. In effect, the statutory monopoly created under

    Section 28 remains subordinate to the superior rights of a

    prior user. Consequently, a registered proprietor cannot

    restrain a party who is able to demonstrate earlier and

    continuous use of the mark in relation to the same goods or

    services. The provision thus safeguards the commercial

    goodwill and reputation acquired through prior use, ensuring

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    that registration does not defeat pre-existing proprietary

    rights in a trademark.

    14. Keeping in mind the aforesaid analysis of the provisions

    of the Trademark Act, it would be an apt to take note of the

    recent enunciation of law by the Apex Court in the case of

    Pernod Ricard India Pvt. Ltd. v. Karnaveer Singh

    Chhabra, reported in 2025 SCC Online 1701. The Apex

    Court, keeping in mind various provisions of law on

    Trademark, succinctly held as under :

    “31.5 In the case of composite marks – those contained
    multiple elements, such as words and logos – the overall
    impression created by the mark is relevant. However,
    proprietors cannot claim exclusive rights over individual
    components, particularly, non-distinctive or descriptive
    elements. Courts have often required disclaimers of such
    generic parts at the time of registration. For instance, in
    Tungabhadra Industries Ltd v. Registrar of Trade Marks
    24, the registration of “Diamond T” in a diamond-shaped
    logo was granted, but the word “Diamond” was required
    to be disclaimed due to its non-distinctiveness.

    32.4 In the present case, the appellants’ attempt to
    isolate the word ‘PRIDE’ as the basis of comparison is
    legally untenable. Trademark similarity must be assessed
    by considering the mark as a whole, and not by extracting
    a single component for comparison. When viewed in their
    entirety, the appellants’ marks – ‘BLENDERS PRIDE’,
    ‘IMPERIAL BLUE’, and ‘SEAGRAM’S’ – are structurally,
    phonetically, and visually distinct from the respondent’s
    mark ‘LONDON PRIDE’. The mere presence of the
    common word ‘PRIDE’ which is a generic and laudatory

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    term, does not render the competing marks
    deceptively similar in the absence of an overall
    resemblance. Thus, under the anti-dissection rule, no case
    for infringement or passing off is made out.

    34. It is a well-established principle of trademark law
    that generic, descriptive, or laudatory terms – particularly
    those commonly used in a given trade – cannot be
    monopolized by any one proprietor. Even where such
    terms form part of a registered trademark, protection
    does not extend to those elements per se unless it is
    affirmatively shown that they have acquired secondary
    meaning – i.e., that the term has come to be exclusively
    and distinctively associated with the plaintiff’s goods in
    the perception of the consuming public.

    41. It is a settled principle of trademark law that
    deceptive similarity does not necessitate exact imitation.
    What is material is the likelihood of confusion or
    association in the minds of consumers arising from an
    overall resemblance between the competing marks. The
    applicable standard is that of an average consumer with
    imperfect recollection.

    42. While comparing rival marks, Courts must assess the
    marks in their entirety, rather than dissecting composite
    trademarks into isolated components. The dominant
    feature of a mark may assist in crossing the preliminary
    threshold of analysis, but the ultimate inquiry must focus
    on the overall impression created by the mark – especially
    in the context of the relevant goods, trade channels, and
    target consumers. The proper test is not to place the two
    marks side by side to identify dissimilarities, but to
    determine whether the impugned mark, when viewed
    independently, is likely to create an impression of
    association or common origin in the mind of the average
    consumer. Even if a particular component of a mark lacks
    inherent distinctiveness, its imitation may still amount to
    infringement if it constitutes an essential and distinctive
    feature of the composite mark as a whole.

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    43. Section 17(1) of the Trade Marks Act, 1999 grants
    exclusive rights only in respect of the mark as registered.
    Section 17(1) excludes protection for common or non-
    distinctive elements unless such elements have acquired
    secondary meaning. Section 27(2) and 29 preserve the
    right to institute passing off actions and define the
    contours of infringement, respectively. Notably, Section
    29(3)
    presumes confusion only where identical marks are
    used for identical goods – a condition not met in the
    present case as the marks.

    46. The courts below also correctly observed that the
    products in question are premium and ultra-premium
    whiskies, targeted at a discerning consumer base. Such
    consumers are likely to exercise greater care in their
    purchase decisions. The distinct trade dress and
    packaging reduce any likelihood of confusion. The shared
    use of the laudatory word ‘PRIDE’, in isolation, cannot
    form the basis for injunctive relief.

    51. It is not in dispute that the word “PRIDE” is not
    registered as a standalone mark. Nor can the appellants
    claim exclusivity over common elements like bottle shape
    or color schemes that are generic and widely used in the
    industry. While the composite marks ‘BLENDERS PRIDE’
    and ‘IMPERIAL BLUE’ are protected, their individual
    elements – lacking distinctiveness – are not independently
    enforceable.

    55. Although the appellants hold registrations for the
    composite marks, no evidence was adduced to
    demonstrate that any particular element – such as bottle
    shape, color scheme, or the word “PRIDE” – had acquired
    distinctiveness or secondary meaning. Trademark
    protection extends only to distinctive
    identifiers. Descriptive or commonplace elements fall
    outside the ambit of protection unless distinctiveness is
    proved.”

    15. Upon careful consideration of the aforesaid decision, the

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    Apex Court in no uncertain terms held that while comparing

    rival marks, the Courts must assess the marks in their

    entirety, rather than dissecting composite trademarks into

    isolated components. Section 17(1) of the Trade Marks Act,

    1999 grants exclusive rights only in respect of the mark as

    registered. Section 17(1) excludes protection for common or

    non-distinctive elements unless such elements have acquired

    secondary meaning.

    16. In order to adjudicate the issue involved in the present

    proceedings, it would be appropriate to consider the salient

    facts emerging from the record, which may be summarized as

    under:

    (i) Though it is the case of the plaintiff that he has been

    engaged in the business of construction since the year 2015

    by using the trade name “Shree Kshetrapal”, it is pertinent to

    note that at the time of filing the application for registration of

    the device mark , the plaintiff had not claimed any

    prior use from a particular date. On the contrary, in the said

    application, the device mark was declared as “proposed to be

    used.”

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    (ii) During the course of the registration proceedings, the

    Registrar of Trade Marks had raised objections under

    Sections 9 and 11 of the Trade Marks Act, 1999. In response

    thereto, the plaintiff had categorically stated that he was not

    claiming exclusive rights over the word “Kshetrapal” in

    isolation, but was seeking protection only in respect of the

    entire device mark as a whole. It was also asserted

    that the device mark, taken as a whole, was artistically and

    visually distinct from the marks cited by the Registrar. Thus,

    before the Registrar of Trade Marks, the plaintiff had claimed

    exclusivity only in respect of the composite device mark

    and not in respect of the individual word

    “Kshetrapal.”

    (iii) In the plaint, the plaintiff has asserted that the trademark

    “Shree Kshetrapal” has been in use since the year 2015, by

    referring to business entities such as Shree Kshetrapal

    Agritech, Shree Kshetrapal Oil Refinery Pvt. Ltd., Shree

    Kshetrapal Infrastructure, Shree Kshetrapal Building

    Materials and Shree Kshetrapal Infra LLP. However, the

    plaintiff has not been able to produce any material to

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    demonstrate that the said entities were engaged in

    construction activities since the year 2015.

    (iv) It is also relevant to note that the mark “Shree

    Kshetrapal” refers to the name of a protector deity, which

    appears to be popularly and commonly used. The prefix

    “Shree” is generally employed as a respectful honorific and is

    not distinctive in character. Consequently, the dominant

    element of the expression “Shree Kshetrapal” appears to be

    the word “Kshetrapal,” which itself carries religious

    connotations.

    (v) It is an admitted position that the plaintiff, in the plaint,

    has not disclosed the earlier association or relationship with

    the defendant. It is also not in dispute that the plaintiff and

    the defendant had jointly floated two schemes, namely “Shree

    Kshetrapal Square-1” and “Shree Kshetrapal Square-2.”

    (vi) From the documentary material produced on record,

    including sale deeds and development permissions, it prima

    facie appears that the plaintiff and the defendant had jointly

    purchased the land and thereafter launched the projects

    “Shree Kshetrapal Square-1” and “Shree Kshetrapal Square-

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    2″ by obtaining joint development permissions.

    (vii) The plaintiff has also not disclosed in the plaint the fact

    that objections had been raised by the Registrar of Trade

    Marks under Sections 9 and 11 of the Act during the course of

    the registration proceedings relating to the device mark

    .

    (viii) It further emerges from the record that the defendant

    has also filed an application on 28.04.2025 for registration of

    a device mark under Trademark Application

    No.6980721 in Class 37, which is presently pending

    adjudication. In the said application, the defendant has

    claimed user since 05.01.2014. The defendant has also placed

    on record prima facie evidence in the form of third-party

    affidavits, including those of a vendor and an architect, in

    support of the contention that the defendant has been

    engaged in construction activities under the name

    “Kshetrapal Construction” since the year 2014.

    17. Keeping in mind the legal analysis as well as the facts of

    the case, this Court would like to proceed further to deal with

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    the contentions raised by the rival parties, as under :

    Suppression of material fact and misleading statement :

    (1) Before this Court goes into suppression and/or

    misleading statement is made or not, at this juncture, it would

    be profitable to consider the recent decision of the Apex Court

    in the case of Kusha Duruka v. State of Odisha, reported in

    (2024) 4 SCC 432, wherein the Apex Court has explained

    doctrine and maxims – suppression veri and expressio falsi

    and effect thereof. Relevant observations of the aforesaid

    decision, read thus;

    “3. In K.D. Sharma Vs. Steel Authority of India Limited
    and others
    it was observed by this Court:

    “39. If the primary object as highlighted in Kensington
    Income Tax Commrs., (1917) 1 KB 486 : 86 LJKB 257 :
    116 LT 136 (CA) is kept in mind, an applicant who
    does not come with candid facts and “clean breast”

    cannot hold a writ of the court with “soiled hands”.
    Suppression or concealment of material facts is not an
    advocacy. It is a jugglery, manipulation, maneuvering
    or misrepresentation, which has no place in equitable
    and prerogative jurisdiction. If the applicant does not
    disclose all the material facts fairly and truly but
    states them in a distorted manner and misleads the
    court, the court has inherent power in order to
    protect itself and to prevent an abuse of its process to
    discharge the rule nisi and refuse to proceed further
    with the examination of the case on merits. If the
    court does not reject the petition on that ground, the
    court would be failing in its duty. In fact, such an

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    applicant requires to be dealt with for contempt of
    court for abusing the process of the court.”

    [emphasis supplied]

    4. In Dalip Singh v. State of Uttar Pradesh and others,
    this Court noticed the progressive decline in the values
    of life and the conduct of the new creed of litigants, who
    are far away from truth. It was observed as under:

    “1. For many centuries Indian society cherished
    two basic values of life i.e.”satya” (truth) and “ahinsa”

    (non- violence). Mahavir, Gautam Buddha and
    Mahatma Gandhi guided the people to ingrain these
    values in their daily life. Truth constituted an integral
    part of the justice- delivery system which was in
    vogue in the pre- Independence era and the people
    used to feel proud to tell truth in the courts
    irrespective of the consequences. However, post-
    Independence period has seen drastic changes in our
    value system. The materialism has overshadowed the
    old ethos and the quest for personal gain has become
    so intense that those involved in litigation do not
    hesitate to take shelter of falsehood,
    misrepresentation and suppression of facts in the
    court proceedings.

    2. In the last 40 years, a new creed of litigants
    has cropped up. Those who belong to this creed do
    not have any respect for truth. They shamelessly
    resort to falsehood and unethical means for achieving
    their goals. In order to meet the challenge posed by
    this new creed of litigants, the courts have, from time
    to time, evolved new rules and it is now well
    established that a litigant, who attempts to pollute the
    stream of justice or who touches the pure fountain of
    justice with tainted hands, is not entitled to any relief,
    interim or final.”

    (emphasis supplied)

    5. In Moti Lal Songara Vs. Prem Prakash @ Pappu
    and another
    , this Court, considering the issue regarding

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    concealment of facts before the Court, observed that
    “court is not a laboratory where children come to play”,
    and opined as under:

    “19. The second limb of the submission is whether in
    the obtaining factual matrix, the order passed by the
    High Court discharging the accused-respondent is
    justified in law. We have clearly stated that though
    the respondent was fully aware about the fact that
    charges had been framed against him by the learned
    trial Judge, yet he did not bring the same to the notice
    of the revisional court hearing the revision against the
    order taking cognizance. It is a clear case of
    suppression. It was within the special knowledge of
    the accused. Any one who takes recourse to method of
    suppression in a court of law, is, in actuality, playing
    fraud with the court, and the maxim supressio veri,
    expression faisi , i.e., suppression of the truth is
    equivalent to the expression of falsehood, gets
    attracted. We are compelled to say so as there has
    been a calculated concealment of the fact before the
    revisional court. It can be stated with certitude that
    the accused- respondent tried to gain advantage by
    such factual suppression. The fraudulent intention is
    writ large. In fact, he has shown his courage of
    ignorance and tried to playpossum.

    20. The High Court, as we have seen, applied the
    principle “when infrastructure collapses, the
    superstructure is bound to collapse”. However, as the
    order has been obtained by practising fraud and
    suppressing material fact before a court of law to gain
    advantage, the said order cannot be allowed to
    stand.”

    (emphasis supplied)

    6. It was held in the judgments referred to above that
    one of the two cherished basic values by Indian society
    for centuries is “satya” (truth) and the same has been put
    under the carpet by the petitioner. Truth constituted an
    integral part of the justice-delivery system in the pre-
    Independence era, however, post-Independence period
    has seen drastic changes in our value system. The

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    materialism has overshadowed the old ethos and the
    quest for personal gain has become so intense that those
    involved in litigation do not hesitate to take shelter of
    falsehood, misrepresentation and suppression of facts in
    the court proceedings. In the last 40 years, the values
    have gone down and now a litigants can go to any extent
    to mislead the court. They have no respect for the truth.
    The principle has been evolved to meet the challenges
    posed by this new breed of litigants. Now it is well settled
    that a litigant, who attempts to pollute the stream of
    justice or who touches the pure fountain of justice with
    tainted hands, is not entitled to any relief, interim or
    final. Suppression of material facts from the court of law,
    is actually playing fraud with the court. The maxim
    supressio veri, expression faisi, i.e. suppression of the
    truth is equivalent to the expression of falsehood, gets
    attracted. Its nothing but degradation of moral values in
    the society, may be because of our education system.
    Now we are more happy to hear anything except truth;
    read anything except truth; speak anything except truth
    and believe anything except truth. Someone rightly said
    that `Lies are very sweet, while truth is bitter, that’s why
    most people prefer telling lies.’

    7. In a recent matter, this Court again came across a
    litigant who had tried to overreach the Court by
    concealing material facts in Saumya Chaurasia v.
    Directorate of Enforcement
    . It was a case where the
    appellant before this Court had challenged the order
    passed by the High Court6 rejecting his bail application.
    He was accused of committing various crimes under the
    Indian Penal Code and the Prevention of Money
    Laundering Act, 2002
    . His bail application was rejected
    by the High Court on 23.06.2023. In the pleadings before
    this Court, it was mentioned that the High Court had
    committed gross error in not considering the chargesheet
    dated 08.06.2023 and the cognizance order dated
    16.06.2023, which clearly suggested that there was error
    apparent on the fact of it. The fact which was available on
    record was that an order in the bail application was
    reserved by the High Court on 17.04.2023 and
    pronounced on 23.06.2023. Having some suspicion, this

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    Court directed the appellant to file an affidavit to clarify
    the aforesaid position. There was no specific reply given
    to the aforesaid query to the Court. Rather vague
    statements were made. Considering the facts available,
    this Court observed that there was a bold attempt by and
    on behalf of the appellant therein to misrepresent the
    facts for challenging the order impugned therein,
    regarding the conduct of the parties and the counsel, this
    Court made the following observations :

    “13. It cannot be gainsaid that every party
    approaching the court seeking justice is expected to
    make full and correct disclosure of material facts and
    that every advocate being an officer of the court,
    though appearing for a particular party, is expected to
    assist the court fairly in carrying out its function to
    administer the justice. It hardly needs to be
    emphasized that a very high standard of
    professionalism and legal acumen is expected from the
    advocates particularly designated Senior advocates
    appearing in the highest court of the country so that
    their professionalism may be followed and emulated by
    the advocates practicing in the High Courts and the
    District Courts. Though it is true that the advocates
    would settle the pleadings and argue in the courts on
    instructions given by their clients, however their duty
    to diligently verify the facts from the record of the
    case, using their legal acumen for which they are
    engaged, cannot be obliviated.

    (emphasis supplied)”

    Upon consideration of the facts of the present case, this

    Court is of the firm opinion that the plaintiff has approached

    the Court by making misleading statements and suppressing

    material facts, while presenting a distorted version of the

    factual matrix. This conclusion is drawn primarily from the

    circumstance that the plaintiff has failed to disclose the

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    fundamental fact that the plaintiff and the defendant had

    jointly purchased the land and thereafter jointly launched the

    projects, namely, “Shree Kshetrapal Square-1” and “Shree

    Kshetrapal Square-2.” Such a material and crucial fact was

    withheld by the plaintiff while instituting the suit, thereby

    enabling the plaintiff to obtain an ex-parte ad-interim

    injunction at the initial stage. Not only that, the plaintiff has

    also suppressed the fact that the application for registration

    of the device mark was filed on the basis that the mark was

    “proposed to be used” and not on the basis of prior use. The

    plaintiff has further failed to disclose the objections raised by

    the Registrar of Trade Marks under Sections 9 and 11 of the

    Trade Marks Act, as well as the submissions made by the

    plaintiff in response thereto. It is evident from the record that

    before the Registrar of Trade Marks, the plaintiff had

    categorically stated that he was claiming exclusivity only in

    respect of the device mark as a whole and not over the word

    mark “Kshetrapal.” Despite such a stand before the statutory

    authority, the plaintiff, in the plaint, has taken a contrary and

    misleading plea by asserting that the mark has been in use

    since the year 2015. In a suit alleging trademark infringement

    and passing off, a plaintiff is expected to make full and candid

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    disclosure of all relevant facts, including the proceedings

    before the Registrar of Trade Marks relating to the

    registration of the mark in question. In the present case, the

    plaintiff has clearly failed to disclose material facts, thereby

    disentitling itself to the equitable relief sought. In the

    considered opinion of this Court, the plaintiff cannot be said to

    have approached the Court with clean hands and appears to

    have instituted the proceedings with suppression of facts,

    misleading statements and a distorted presentation of the

    factual position, apparently with an oblique intention. In such

    circumstances, the learned trial Court could have rejected the

    application for interim relief solely on the ground of

    suppression of material facts, without entering into the merits

    of the controversy. The only infirmity which this Court finds in

    the impugned order is that the rejection of the interim relief

    was not accompanied by an order of costs. However, since the

    learned trial Court has also examined the matter on merits,

    this Court deems it appropriate to consider the case on merits

    as well.

    (2) Protection under Section 28 vis-à-vis Section 34:

    As discussed hereinabove, Section 28 of the Trade Marks

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    Act, 1999 confers upon the registered proprietor a statutory

    right to the exclusive use of the registered trademark in

    relation to the goods or services for which the mark stands

    registered. However, such exclusivity is not absolute and

    remains subject to other provisions of the Act, particularly the

    protection afforded to a prior user under Section 34. In the

    present case, it is an admitted position that the plaintiff

    applied for registration of its device mark under

    Class 37 vide Application No.6138925. Significantly, in the

    said application the plaintiff did not claim registration on the

    basis of prior use; on the contrary, the device mark

    was declared as “proposed to be used.” In such peculiar

    circumstances where the plaintiff itself has claimed the

    registered device mark as ‘proposed to be used and once the

    defendant has raised a defence under Section 34 of the Act on

    the ground of prior and continuous use, the burden was upon

    the plaintiff to demonstrate that it had been using the said

    trademark prior to the use claimed by the defendant.

    However, upon examination of the plaint and the documents

    placed on record, this Court finds that the plaintiff has failed

    to establish that any of its entities were engaged in

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    construction activities under the trade name “Shree

    Kshetrapal.” The firms relied upon by the plaintiff, namely

    Shree Kshetrapal Agritech, M/s. Shree Kshetrapal Oil Refinery

    Pvt. Ltd., Shree Kshetrapal Infrastructure and Shree

    Kshetrapal Building Materials, prima facie indicate that the

    plaintiff was engaged in business activities other than

    construction, albeit under the name “Shree Kshetrapal.”

    Consequently, the material on record does not satisfactorily

    establish that the plaintiff had been using the trade name

    “Shree Kshetrapal” in relation to construction activities prior

    to the defendant. Further, when the registration of the device

    mark itself has been sought on the basis that the

    mark was “proposed to be used,” the plaintiff cannot, under

    the guise of such registration, claim exclusive rights over an

    individual component of the registered device mark. At best,

    the exclusivity contemplated under Section 28 would extend

    only to the device mark in its entirety. Even otherwise, the

    plaintiff has attempted to rely upon sales figures from the year

    2015 to 2025 in support of its claim of use. However, the said

    figures do not clearly indicate which entity generated the

    sales, nor do they specify the particular projects or business

    activities from which such figures were derived. Moreover,

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    having regard to the nature of the construction business, the

    figures appear comparatively modest and do not prima facie

    suggest that the plaintiff had developed a wide commercial

    presence, substantial goodwill, or extensive business

    operations under the said mark. On the other hand, the

    defence raised by the defendant under Section 34 prima facie

    appears to have some substance. The defendant has produced

    third-party affidavits, including those of a vendor and an

    architect, indicating that the firm “Kshetrapal Construction”

    has been engaged in construction activities since the year

    2014. In addition, the defendant has placed on record

    documents suggesting that several projects have been

    undertaken wherein either the expression “Shree Kshetrapal”

    or “Kshetrapal” has been used. In the aforesaid

    circumstances, this Court is of the considered view that mere

    registration of a device mark under Section 28 does not

    entitle the plaintiff to claim exclusivity over an individual

    component of the mark. The statutory exclusivity, if any,

    would extend only to the composite device mark as registered.

    It is true that in order to successfully invoke the defence

    under Section 34, the defendant is required to demonstrate

    continuous and prior use of the trademark, and the burden of

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    establishing such prior use ordinarily lies upon the defendant.

    However, such strict proof would arise only where the plaintiff

    itself has clearly established prior use of the mark in question.

    In the present case, the plaintiff did not claim any prior use at

    the time of seeking registration of the device mark ,

    and has subsequently attempted, in the plaint, to assert usage

    since the year 2015 under the guise of the registered device

    mark. In the considered opinion of this Court, therefore, it

    was incumbent upon the plaintiff to first establish a clear and

    cogent case of prior use, and only thereafter could the

    defendant be called upon to discharge the stricter burden

    contemplated under Section 34. In the absence of such

    material from the plaintiff, the reliance placed upon Section

    28 to claim exclusivity cannot be accepted.

    Additionally, this Court is of the view that the

    expression “Shree Kshetrapal” itself does not appear to

    possess distinctive character. The word “Kshetrapal” refers to

    the name of a deity, and therefore carries a religious

    connotation which is commonly used. Consequently, the mark

    lacks inherent distinctiveness. In view of Section 9 of the Act,

    exclusivity over such a non-distinctive expression cannot

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    ordinarily be claimed. It is also pertinent to note that at the

    time of registration of the device mark , the Registrar

    of Trade Marks had raised an objection under Section 9, to

    which the plaintiff responded by stating that exclusivity was

    being claimed only in respect of the device mark as a

    whole, on account of its distinctive artistic representation.

    Having taken such a stand before the statutory authority, the

    plaintiff cannot now seek, through the present proceedings, to

    obtain exclusive rights over the non-distinctive word “Shree

    Kshetrapal.” Thus, on an overall consideration of the statutory

    scheme and the material placed on record, the contention

    advanced on behalf of the plaintiff on the basis of Section 28

    cannot be accepted.

    (3) Rule of Anti-Dissection – Section 17:

    As discussed hereinabove, Section 17 of the Trade Marks

    Act, 1999 governs the effect of registration of a composite

    trademark consisting of multiple components. The provision

    makes it clear that registration of a composite mark confers

    exclusive rights in the mark as a whole, and not necessarily in

    respect of each individual component forming part of the

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    registered mark. In other words, the law recognizes the rule

    of anti-dissection, whereby a composite trademark is required

    to be considered in its entirety, and the proprietor cannot

    isolate one element of such mark to claim exclusivity thereon.

    In the present case, it is an admitted position that the plaintiff

    has obtained registration only in respect of a device mark

    . In such circumstances, it would not be permissible

    for the plaintiff to claim exclusive rights over one of the

    components of the said device mark, namely, the expression

    “Shree Kshetrapal.” The statutory scheme under Section 17

    contemplates that if exclusivity is sought over any individual

    component of a composite mark, such component must either

    be independently distinctive and separately registered, or

    otherwise capable of separate registration. In the case at

    hand, it is not in dispute that the expression “Shree

    Kshetrapal” has not been registered independently in favour

    of the plaintiff, and the application filed by the plaintiff

    seeking registration of the said word mark is still pending

    consideration before the Trade Marks Registry. In view of

    Section 17(2), where a registered mark contains elements

    which are common to the trade, non-distinctive, or otherwise

    incapable of independent registration, the proprietor cannot

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    claim exclusivity over such elements merely because they

    form part of a registered composite device mark.

    Furthermore, the word “Kshetrapal” carries religious and

    mythological connotations and is commonly understood as

    referring to a guardian deity or protector of a region or

    temple. Expressions of such nature, which are widely used

    and possess religious significance, ordinarily lack the element

    of inherent distinctiveness necessary for conferring exclusive

    proprietary rights. Therefore, having regard to the scheme

    and intent of Section 17, this Court is of the considered view

    that the plaintiff cannot dissect the registered device mark

    and claim exclusivity over the expression “Shree

    Kshetrapal.” Consequently, the plaintiff cannot claim any

    monopoly or exclusive right over the said expression, nor can

    such claim form the basis for grant of equitable relief in the

    present proceedings.

    (4) Presumption of Validity of Registered Trademark –

    Scope of Section 31:

    So far as the contention raised with reference to Section

    31 of the Trade Marks Act, 1999 is concerned, the said

    provision deals with the statutory presumption of validity

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    attached to a registered trademark. The provision stipulates

    that registration of a trademark shall be prima facie evidence

    of its validity. In the facts of the present case, there is no

    dispute with regard to the registration of the plaintiff’s device

    mark . The controversy, however, does not pertain to

    the validity of the registration itself, but rather to the

    plaintiff’s attempt to claim exclusivity over one of the

    components of the registered device mark, namely, the

    expression “Shree Kshetrapal.” It is required to be noted that

    the presumption under Section 31 ordinarily comes into

    operation where, in a suit for infringement or passing off, the

    defendant challenges or disputes the validity of the

    registration of the trademark itself. In the present case, the

    defendant has not disputed the validity of the plaintiff’s

    registered device mark . The dispute is confined only

    to the plaintiff’s claim that it enjoys exclusive rights over the

    word “Shree Kshetrapal,” which forms merely one of the

    components of the registered device mark. In such

    circumstances, the plaintiff cannot invoke Section 31 to

    extend the presumption of validity so as to claim monopoly or

    exclusivity over an individual component of the composite

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    device mark. As discussed hereinabove, the statutory

    presumption under Section 31 operates only in respect of the

    registered mark as a whole, and not in respect of its individual

    components, particularly where such components are not

    independently registered. It is also well settled that the

    presumption under Section 31 is only prima facie in nature

    and is rebuttable. In the present case, the plaintiff has not

    been able to prima facie demonstrate, through cogent

    documentary evidence, that the expression “Shree

    Kshetrapal” has been continuously and extensively used by it

    in relation to construction and allied activities. Under such

    circumstances, merely because the plaintiff holds registration

    of a device mark , the benefit of the presumption

    under Section 31 cannot be extended to confer exclusive

    rights over one of its components, namely, “Shree

    Kshetrapal.” Therefore, in the considered opinion of this

    Court, the reliance placed by the plaintiff on Section 31 of the

    Act to assert exclusivity over the said expression is

    misconceived and unsustainable in law.

    (5) Average Consumer Test and Imperfect Recollection:

    It is well settled that the entire scheme of the Trade

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    Marks Act, 1999 is premised upon the test of an average

    consumer possessing imperfect recollection, with the primary

    objective of preventing likelihood of confusion or deception in

    the minds of such consumers. While examining a claim of

    infringement or passing off, the Court is required to assess

    whether the impugned mark is likely to create confusion in

    the mind of a person of average intelligence and imperfect

    recollection. In the present case, it is equally necessary to

    consider the nature of the goods and services forming the

    subject matter of the dispute. Admittedly, the activities

    undertaken by both the plaintiff and the defendant relate to

    construction and real estate development. Unlike ordinary

    consumer goods which are readily available for purchase from

    a shop, rack, or showroom, purchase of immovable property is

    a considered and deliberative transaction, ordinarily

    undertaken after due verification, inquiry, and scrutiny of the

    project as well as the developer. In such circumstances, even

    assuming that a prospective purchaser initially experiences

    some degree of confusion upon noticing the expression “Shree

    Kshetrapal”, such confusion would not automatically

    culminate in the purchase of a property from the wrong

    developer. A person intending to purchase immovable

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    property would invariably undertake further inquiry,

    verification of the project details, and interaction with the

    concerned developer, during which process it would

    immediately become apparent whether the project belongs to

    the plaintiff or to the defendant. Therefore, even if a

    prospective purchaser approaches either party under a

    mistaken impression at the initial stage, such confusion would

    be temporary and easily dispelled upon minimal inquiry.

    Consequently, the possibility of a consumer ultimately

    purchasing property from the defendant under the belief that

    it belongs to the plaintiff appears to be highly remote and

    improbable. Under these circumstances, this Court is of the

    considered view that the likelihood of confusion or deception,

    which forms the foundation for grant of relief in trademark

    disputes, is not sufficiently established in the present case. A

    consumer intending to purchase property from the plaintiff

    would, upon due inquiry, clearly ascertain the identity of the

    developer and would not inadvertently purchase property

    from the defendant. Therefore, applying the average

    consumer test in the context of the nature of the services

    involved, this Court finds no justification to extend equitable

    protection to the plaintiff on the ground of likelihood of

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    confusion.

    18. Now let us consider the authorities cited by learned

    advocates for the parties.

    (1) So far as the decision in Marico Limited v. Agro Tech

    Foods Limited is concerned, wherein reliance was placed on

    Kewal Ashokbhai Vasoya v. Sujanil Chemo Industries, the

    Bombay High Court has observed that the question whether

    an injunction should be continued or vacated essentially falls

    within the judicial discretion of the Court, and such discretion

    must necessarily be exercised having regard to the peculiar

    facts and circumstances of each case. If the facts of the

    present case are examined in light of the aforesaid principle,

    this Court finds no justifiable reason to interfere with the

    discretion exercised by the trial court in vacating the ex-parte

    ad-interim injunction, particularly on the ground of

    suppression of material facts. In trademark litigation, where a

    defence under Section 34 of the Trade Marks Act is available

    against the statutory rights under Section 28, a plaintiff who

    seeks equitable relief is under a duty to disclose all material

    facts, including the prior use of the mark by the defendant. In

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    the present case, the plaintiff was fully aware that the

    defendant had acted as a joint developer/partner in certain

    schemes where the expression “Shree Kshetrapal” was jointly

    used, and therefore such fact was a crucial and material

    circumstance. The deliberate omission to disclose this fact

    clearly justified the trial court in vacating the ex-parte ad-

    interim relief. Another significant suppression, which weighed

    both with the trial court as well as this Court, pertains to the

    non-disclosure of the proceedings before the Trade Marks

    Registry, where the plaintiff, while meeting the objection

    raised under Section 9, had expressly stated that it was

    claiming exclusivity only over the device mark as a

    whole. This statement clearly demonstrates that the plaintiff

    itself was conscious that the expression “Shree Kshetrapal,”

    being the name of a deity, was not capable of exclusive

    appropriation. In such peculiar circumstances, the authority

    relied upon by the plaintiff is of no assistance to its case.

    (2) With regard to the decisions in Ramdev Food Products Pvt.

    Ltd. v. Arvindbhai Rambhai Patel and Patel Field Marshal

    Agencies v. P.M. Diesels Ltd., it deserves to be noted that both

    the judgments arose under the provisions of the erstwhile

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    Trade and Merchandise Marks Act, 1958. In view of the

    recent pronouncement of the Supreme Court in Pernod Ricard

    India Pvt. Ltd. v. Controller of Patents and Designs, the

    observations made in Ramdev Food Products to the effect that

    the word “Ramdev” constituted the dominant feature of the

    mark would operate primarily within the framework of the

    earlier statutory regime.

    Similarly, the judgment in Patel Field Marshal Agencies

    cannot be interpreted to mean that a civil court, while dealing

    with an interlocutory application, must invariably grant

    interim relief merely because the plaintiff is the proprietor of

    a registered trademark. Registration confers only prima facie

    validity, and the civil court is not precluded from examining

    the issue while deciding an application for interim injunction

    in a suit for infringement or passing off. In the present case,

    the dispute is not regarding the validity of the registered

    device mark itself; rather, the controversy is whether

    such registration entitles the plaintiff to claim exclusivity over

    one of its components, namely “Shree Kshetrapal.”

    (3) Insofar as the decision in K.R. Chinna Krishna Chettiar v.

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    Sri Ambal & Co. is concerned, it must again be borne in mind

    that the said judgment arose under the earlier statutory

    regime. Under the present Trade Marks Act, 1999, Section 9

    embodies a clear legislative policy prohibiting the

    monopolization of generic, descriptive, or commonly used

    expressions. The legislative intent is that such expressions

    must remain available for public use, unless it is

    demonstrated through convincing evidence that the

    expression has acquired a secondary meaning through long

    and exclusive use. In the present case, the plaintiff has failed

    to produce any material demonstrating that the expression

    “Kshetrapal” has acquired a secondary meaning identifying

    the plaintiff’s services. Even the sales figures relied upon by

    the plaintiff, ranging approximately between Rs.42 to Rs.45

    lakhs during the relevant period, cannot reasonably establish

    that the word mark “Kshetrapal” has come to exclusively

    denote the plaintiff’s services in the construction field.

    Significantly, the plaintiff obtained registration of its device

    mark as “proposed to be used”, without asserting

    any prior use. Hence, the decision in K.R. Chinna Krishna

    Chettiar is clearly distinguishable and not applicable.

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    (4) As regards the decision of this Court in New Narmada

    Divya Jyoti Impex Trading v. Divyan Mahendra Singhvi, the

    injunction was confirmed in favour of the plaintiff therein

    because the defendant’s logo/device mark as a whole was

    deceptively similar to the plaintiff’s registered logo, and the

    plaintiff had established substantial business turnover running

    into crores of rupees over several years. In the present case,

    however, the dispute is not one of similarity between two

    device marks. Rather, the plaintiff seeks to claim exclusivity

    over the expression “Shree Kshetrapal,” which forms only a

    component of its registered device mark. Moreover, the

    plaintiff has failed to establish through credible evidence that

    the said expression has acquired secondary meaning in the

    real estate market. Hence, the said judgment does not assist

    the plaintiff.

    (5) Similarly, the decision in Under Armour Inc. v. Aditya Birla

    Fashion and Retail Ltd. is clearly distinguishable. In the

    present case, at the stage of registration of the device mark

    , the plaintiff itself stated before the Trade Marks

    Registry, in response to the objection under Section 9, that it

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    was claiming exclusivity only over the device mark as a whole.

    The objection raised by the Registrar related specifically to

    the word “Kshetrapal,” being a common and religious

    expression. Having secured registration of the composite

    device mark on that basis, the plaintiff cannot now seek

    exclusivity over the individual component “Kshetrapal,” unless

    it establishes through convincing evidence that the said

    expression has acquired a secondary meaning, which it has

    failed to do.

    (6) With regard to the decision in Torrent Pharmaceuticals

    Ltd. v. Alkem Laboratories Ltd., it must be noted that the

    dispute therein concerned pharmaceutical products, where

    the court exercised greater vigilance owing to the potential

    implications on public health. In such cases, even a slight

    likelihood of confusion between two marks may have serious

    consequences. In contrast, the present dispute pertains to

    construction and real estate services, where the consumer

    decision-making process involves detailed inquiry and

    deliberation. The goods or services involved are not items that

    can be casually picked up from a shop or showroom.

    Therefore, the ratio of the aforesaid decision cannot be

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    applied in a straight-jacket manner to the present case.

    (7) In Midas Hygiene Industries Pvt. Ltd. v. Sudhir Bhatia, the

    Supreme Court observed that in cases of trademark

    infringement, injunction normally follows, particularly where

    the adoption of the mark appears dishonest. While there can

    be no dispute with the said proposition, the facts of the

    present case demonstrate that it is the plaintiff who has

    approached the Court with suppression and misleading

    statements. Even on merits, the plaintiff has failed to establish

    that the expression “Shree Kshetrapal” has acquired

    secondary meaning in relation to construction services.

    Consequently, the ratio of the said decision is inapplicable.

    (8) In Hindustan Pencils Pvt. Ltd. v. India Stationery

    Products Co., the Court protected the mark because the

    plaintiff had established substantial goodwill and reputation.

    In the present case, however, the plaintiff has failed to

    demonstrate that the expression “Shree Kshetrapal” has

    attained reputation or market recognition in the real estate

    sector. No material such as consumer surveys, brand

    recognition studies, or independent market references has

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    been produced. Consequently, the said decision is of no

    assistance.

    (9) In SIA Gems and Jewellery Pvt. Ltd. v. Prashant R. Shah,

    the Court observed that even a common word may be

    registered when used in a distinctive stylized form. In the

    present case, however, the dispute does not concern the

    device mark as a whole but rather the plaintiff’s

    claim to exclusivity over the individual component “Shree

    Kshetrapal.” Since the said expression is a common religious

    name, objectionable under Section 9 unless secondary

    meaning is proved, the said decision is not applicable.

    (10) The decision in Jagdish Sweets and Farsan v. Jagdish

    Foods Pvt. Ltd. also stands on a different footing, as the

    plaintiff therein had established goodwill and reputation

    sufficient to justify grant of injunction. In the present case, the

    plaintiff has failed to establish that the expression “Shree

    Kshetrapal” has acquired secondary meaning or market

    reputation.

    (11) Likewise, the decision in Jagdish Gopal Kamath v. Lime

    & Chilli Hospitality Services reiterates that a mark containing

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    descriptive elements may still be protected if the mark as a

    whole has acquired distinctiveness and goodwill. However, in

    the present case the plaintiff’s device mark was

    registered only in 2023 with the notation “proposed to be

    used,” and there is no cogent evidence demonstrating that the

    component “Shree Kshetrapal” has independently acquired

    distinctiveness.

    (12) As regards Eduspark International Pvt. Ltd. v. Laxmi

    Publications (P) Ltd., the factual matrix therein is entirely

    different, and therefore the ratio of the said decision cannot

    be applied to the peculiar facts of the present case.

    (13) Finally, in Nirav Nimni Corporation v. M/s. Nirav

    Enterprises, the plaintiff had established both long-standing

    registration and prior use dating back several decades, along

    with copyright protection. In the present case, the plaintiff’s

    registration of the device mark is of recent origin

    (2023) and is expressly stated to be “proposed to be used.” No

    evidence of prior reputation or secondary meaning has been

    demonstrated. Hence, the said decision is also

    distinguishable.

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    Conclusion

    19. In view of the foregoing discussion, this Court finds no

    infirmity in the impugned order passed by the trial court in

    rejecting and vacating the interim relief. The discretion

    exercised by the trial court cannot be said to be arbitrary or

    unreasonable, particularly in light of the serious suppression

    of material facts by the plaintiff, including the non-disclosure

    that the defendant had jointly used the trade name “Shree

    Kshetrapal” with the plaintiff in the projects Shree Kshetrapal

    Square-1 and Shree Kshetrapal Square-2, as well as the

    plaintiff’s own stand before the Trade Marks Registry while

    overcoming objections under Sections 9 and 11. This Court is

    therefore satisfied that the plaintiff has not approached the

    Court with clean hands, apart from this, even on merits as

    discussed hereinabove, is not entitled to the equitable relief.

    Accordingly, the Appeal from Order stands dismissed with

    costs quantified at Rs.50,000/-.

    20. Consequently, the Civil Application also stands

    dismissed.

    (NIRAL R. MEHTA,J)
    V.J. SATWARA

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