P.S.MUZEEB
B.A. LL.B. (HONS)
Precious Jewels & Anothers vs. Varun Gems [2014 (60) PTC 465 (SC)]
Justice Anil R. Dave,
Justice Vikramajit Sen
FACTS
In
this case, the appellants aggrieved by the interim orders in a civil suit
approached this Hon’ble Court by way of an appeal.
The
appellants and respondents belong to same family and reside in Delhi, having
Surname “RAKYAN”. Their family business
is sale of Jewellary. The family has not less than 15 business units in
different names and styles. The appellants do the same Jewellary business with
the name and style “NEENA AND RAVI RAKYAN” and the respondents shop name being
“RAKYAN’S FINE JEWELLARY”. Both their shops are abutting each other. The
respondents restrained appellant in doing the Jewellary business under the name
& style of NEENA AND RAVI RAKYAN alleging that they cannot use the word
“RAKYAN” as it is the violation of their IPR rights. The respondents got
interim order against the appellants, restraining them the use of word
“RAKYAN”.
CONTENTION
i.
Whether the appellants can continue with the
word “RAKYAN”?
ii.
Whether the interim order was just and proper?
ARGUMENTS
The
learned counsel on behalf of the respondents argued that the appellants had no
right to do their business in the shop which is next to the shop of the
plaintiff. The learned counsel also submitted that the appellants have no right
to use word “RAKYAN”.
The
learned counsel for appellants vehemently argued that they should not be
restrained. The learned counsel argued that the Partners in the said firm are
Smt. Neena Rakyan and Shri Ravi Rakyan. They cannot be restrained from doing
their business in their own name.
The
learned counsel relied upon Section 35 of
the Trademarks Act, 1999. The Section 35 of Trademarks Act, 1999 says that no
person shall be restrained of using his own name. Further for the clear
understanding the Section 35 says that, Nothing in this Act shall entitle the
proprietor or a registered user of a registered trade mark to interfere with
any bona fide use by a person of his own name or that of his place of business,
or of the name, or of the name of the place of business of any of his
predecessors in business, or the use by any person of any bona fide description
of the character or quality of his goods or services.
JUDGMENT
The
Hon’ble Supreme Court accepting the arguments of the appellants concerning the
interim order held that, we do not find any similarity between the marks by
looking at the provision Section 35 of the Trademarks Act, 1999. The appellants
cannot be restrained from running the business on the name “NEENA AND RAVI
RAKYAN”. We therefore quash and set aside order granting interim relief to the
respondents.
CONCLUSION
The
use of surname is not an offence. Section 34 of The Trade and Merchandise Act,
1958 also entitles a person to use his/her name or that of his/her place of
business to any bonafide description of the character or quality of his
goods. Section 35 of The Trademarks Act,
1999 protects use by a person of his own name.
The honest use by the person his
own name without any intention to deceive does not amount to any infringement
or passing off. In Benzet Cie’s
Application[1], the Court held
that, “mere surname is not the name of a company, individual or firm. Further
any person with bonafide intention can use his own name and without any
intention to deceive anybody or without intention to make use of the goodwill.[2] Therefore use of name with
honest use does not amount to any infringement and passing off.
