Precious Jewels Vs. Varun Gems
2014 (60) PTC 465 (SC)
• Partners of the Respondent and the Appellant firms belonged to the same family sharing a common surname ‘RAKYAN’.
• Both the parties were dealing in jewellry. Appellant was doing business in the name and style of “NEENA AND RAVI RAKYAN”. Respondent was doing their business in the name and style of “Rakyan’s Fine Jewellery”.
• The Hon’ble High Court of Delhi had restrained the Appellant from using the trade mark ‘RAKYAN’. The Appellant preferred the present appeal before the Supreme Court.
Appellant could not have been restrained from doing their business in the name and style of “NEENA AND RAVI RAKYAN” for the reason that the partners in the said firm are Smt. Neena Rakyan and Shri Ravi Rakyan and they cannot be restrained from doing their business in their own name in light of Section 35 of the Trade Marks Act, 1999.
Appellant had no right to do their business in the shop which is next to the shop of the Respondent and they have no right to use the word “RAKYAN” in the name of their shop.
Interlocutory order passed by the Court below is not just and proper in view of the provisions of Section 35 of the Act.
Section 35 of the Act permits anyone to do his business in his own name in a bona fide manner. In the instant case, it is not in dispute that the Appellant is doing their business in their own name and their bona fides have not been disputed. It is also not in dispute that the parties are related to each other and practically all the family members are in the business of jewellery.
We have perused the hoardings of the shops where they are doing the business and upon perusal of the hoardings we do not find any similarity between them.
Looking at the provisions of Section 35 of the Act, there is no prima facie case in favour of the Respondent and therefore, the Appellant could not have been restrained from doing their business.