TABLE OF CONTENTS

TABLE OF ABBREVIATIONS………………………………………………….3

TABLE OF AUTHORITIES…………………………………………………..4-5

STATEMENT OF FACTS…………………………………………………….6-8

STATEMENT OF JURISDICTION …………………………………………...9

STATEMENT OF ISSUES……………………………………………………..10

SUMMARY OF ARGUMENTS……………………………………………11-13

DETAILED PLEADINGS………………………………………………….14-24

PRAYER………………………………………………………………………..25
 TABLE OF ABBREVIATIONS

ABBREVATIONS FULL FORMS

& AND

SC Supreme court of India

HC High Court

TM Trade Mark

HON’BLE Honourable

Sec. Section

Art. Article

AIR All India Reporter

u/s Under Section

i.e. That is

PTC Patents and Trademarks Court

SCC Supreme Court Cases

SCR Supreme Court Reports

 TABLE OF AUTHORITIES

LIST OF JUDICIAL PRECEDENCE:

1) ERVEN WARNIK VS TOWNEND (1980)

2) BORTHWICK VS EVENING POST (1888)
3) M/S. S.M. DYECHEM LTD. VS M/S. CADBURY(INDIA)
LTD.(AIR 2000 SC 2114)
4) CADILA HEALTH CARE LTD. VS CADILA
PHARMACEUTICALS (2001 SCC 73)
5) ALKEM LABORATERIES LTD. VS MEGA INTERNATINAL
(P) LTD. (2007)
6) IN POWER CONTRA/APPLIANCES VS SUMEET MACHINES
(P) LTD (1994)
7) IN ZENIT MATAPLAST (P) LTD. VS STATE OF
MAHARASHTRA (2009)
8) ROCA SANITARIO S.A. Vs NARESH KUMAR GUPTA (2010)
9) BALKRISHNA HATCHERIES VS NANDOS INTERNATIONAL
LTD. (2007 (35) PTC 295(BOM))

STATUTES

• The Code of Civil Procedure,1908(Act No. 5 of 1908)

• The Trade Marks Act,1999(Act No. 47 of 1999)
• Paris Convention for the Protection of Industrial
Property(“Paris convention”),1883
• The trade marks act , 1958
 LIST OF BOOKS REFEREED

• Commercial Exploitation of Intellectual Property by Hilary

Pearson & Clifford Miller
• Trade Marks and Passing-off by P. Narayanan
• Intellectual Property Laws by Meenu Paul
• Law of Trade Marks by Prof. Ashwani Kumar Bansal
• Kerly’s Law of Trade Marks
• Intellectual Property Law-I by Dr. Ashok K. Jain

WEBSITES

1. https://indiankanoon.org/
2. https://casemine.com/
3. www.legitquest.com
4. www.scconline.com
 STATEMENTS OF FACTS

THE FACTS RESPECT FULLY SHOW THE:

1.(Petitioner) Hummingwayy and Tumblrr Pvt Ltd, based in Norway is the

proprietor of the trademark ‘HumTum’ [written in a stylized manner with the
device of daisies(flowers) in the background], since 1966. It has set up a subsidiary
in New Delhi for the purpose of carrying on business under the trademark
‘HuMTuM’, on behalf of the parent company. The company is yet to formally start
its operations in India, but has applied for registration in India. The status of the
application in May 2020 is that it is sent to Vienna Codification. The company
secured its earliest registration for the mark in the year 1970 in the United
Kingdom.

2. It is a huge conglomerete primarily engaged in designing, marketing and selling

a wide variety of premium segment fashionable clothing and ancillary products for
women, men, teenagers and children. With the boost in ecommerce, products of
the company are available in India through Amazon/ Myntra and other similar
online shopping service providers.

3.(Respondent) Hiralal Megabrands Pvt. Ltd, an Indian company (based in

Gujarat but having presence throughout India and the Middle-East) is engaged in
the business of marketing, supplying, selling garments and ancillary products
under the trademark ‘Hum Tum’, written in Hindi, Gujarati and English since the
year 2011. It is registered in India since 2014. Hiralal Megabrands Pvt. Ltd
believes that the meaning of the Hindi expression ‘Hum Tum’ has a lot to do with
the ‘connect’ that the mark has managed to forge with the end users. Its biggest
outlet is in Saket, Delhi.
OPERATIONS THROUGH E-COMMERCE:
4. Hummingway and Tumbler Pvt Ltd maintains that though its operations in
India are yet to kickstart, news pertaining to its famous mark ‘HuMTuM’ is
readily available and frequently accessed through search engines such as
www.google.com, www.yahoo.com and www.msn.com; result that the said
mark has achieved extensive recognition amongst relevant section of the
public.
5. Hiralal Megabrands was using a confusingly similar trademark ‘HumTum’
for products/goods similar to hummingway and was also offering goods
bearing ‘HumTum’ mark on online sites such as www.jabong.com,
www.amazon.com and www.myntra.com .

District court decision:

6. Hummingwayy and Tumblrr Pvt Ltd came across the goods of Hiralal
Megabrands recently and found out that the latter was using a confusingly
similar TM ‘Hum Tum’ for products / goods similar to his.

7. Hummingwayy and Tumblrr Pvt Ltd filed a suit for passing off, against
Hiralal Megabrands after a cease and desist notice was not complied with by
the latter.

8. The district court at Delhi held that there was no passing-off made out as the
TMs were quite different in appearance and that both the brands operated in
two very different territories; that the defendant honestly and bonafidely
conceived and adopted the trademark ‘Hum Tum’, being a popular expression
of Hindi language; that the defendant has been continuously, extensively and
 uninterruptedly using the same since the year 2011; that the plaintiffs were
not entitled to any relief on the ground of acquiescence and waiver.

Appeal filed by the party:

9. The aggrieved party, Hummingwayy and Tumblrr Pvt Ltd has filed an appeal
against the order of the District court maintaining that the judge failed to
properly appreciate a few grounds like the defendants being in the same line
of business as the plaintiffs and ignored a number of (other) parameters while
deciding the case.
 STATEMENT OF JURISDICTION

THE HON”BLE HIGH COURT OF JUDICATURE AT NEW DELHI

EXERCISES JURISDICTION TO HEAR AND ADJUDICATE OVER THE
MATTER UNDER SEC. 96 OF THE CODE OF CIVIL PROCEDURE ,1908.

THE RESPONDENT HUMBLY SUBMITS TO JURISDICTION OF THE

HON”BLE COURT WHICH HAS BEEN INVOKED BY THE PETITIONER .
HOWEVER, THE RESPONDENT RESERVES THE RIGHT TO
CHALLENGE THE SAME. THE PROVISION UNDER WHICH THE
PETITIONER HAS APPROACHED THE HONORABLE COURT IS READ
HEREIN UNDER AS:

Sec. 96: Appeal from original decree

(1) Save where otherwise expressly provided in the body of this Code or by any
other law for the time being in force, an appeal shall lie from every decree passed by
any Court exercising original jurisdiction to the Court authorized to hear appeals
from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of
parties.
1
[(4) No appeal shall lie, except on a question of law, from a decree in any suit of
the nature cognizable by Courts of Small Causes, when the amount or value of the
subject-matter of the original suit does not exceed 2 [ten thousand rupees.]]
 STATEMENT OF ISSUES

ISSUE 1: IS THE SUIT FOR PASSING OFF BY THE APPELLANT VALID?

ISSUE 2 : DOES THE RESPONDENT’S USE OF THE TM “ Hum Tum”

AMOUNTS TO INFRINGEMENT OF APPELLANTS’ REGISTERED TM
“HuMTuM”?

ISSUE 3: WHETHER THE APPELLANT IS ENTITLED TO THE

PERMANENT INJUCTION IN VIEW OF THE PRIOR USER OF THE TM
“HUMTUM” ?

ISSUE 4: DOES THE RESPONDENT IS AT ALL USING THE TRADEMARK

“HUMTUM” OF THE APPELLANT AND WHETHER THE APPELLANT IS
PROPRITER OF TM BY VIRTUE OF LONG USER?

ISSUE 5:WHETHER THE TM OF THE APPELLANT HAD NO

RECOGNITION IN INDIA AT THE TIME WHEN RESPONDENT STARTED
USING THEIR TM AND IF SO , TO WHAT EFFECT?
 SUMMARY OF ARGUMENTS

1. Is The Suit for Passing off by the appellant is valid?

Passing off action in Trade Mark law is to protect some form of property
usually the goodwill of the plaintiff in his business or his goods or his
services.

The law of passing off provides a remedy against a false representation

tending to deceive customers into believing that the goods which defendant
is selling are really plaintiff’s.

So in this case there was no passing-off made out as the TMs were quite
different in appearance and that both the brands operated in two very
different territories; that the defendant honestly and bonafidely conceived
and adopted the trademark ‘Hum Tum’, being a popular expression of Hindi
language; that the defendant has been continuously, extensively and
uninterruptedly using the same since the year 2011; that the plaintiffs were
not entitled to any relief on the ground of acquiescence and waiver.

2. Does the Respondent’s use of the TM “ Hum Tum” amounts to

infringement of appellants’ registered TM “HuMTuM?

Sec. 29 of the Trade Mark Act,1999 defines Infringement of trade marks

In this case there was no infringement of appellants’ registered TM

HuMTuM . the appellants mark is registered outside India ,it doesn’t have
the same market competitors as that of respondent . The appellant could not
claim monopoly in the variation of the ordinary word “hum tum” as both
labels are different in essential features and used in different meaning .
3. WHETHER THE APPELLANT IS ENTITLED TO THE
PERMANENT INJUNCTION IN VIEW OF THE PRIOR USER OF
THE TM “HUMTUM” ?

Rule 1 Order XXXIX of Code of Civil Procedure 1908 " defines Cases in
which temporary injunction may be granted"

Rule 2 Order XXXIX of Code of Civil Procedure 1908 " defines Injunction
to restrain repetition or continuance of breach".

The appellant is not entitled to permanent injunction in view that the

respondent doesn’t infringes with the trade mark of the appellant and there
was no case made of passing off goods. The respondent did not harm the
good will of the appellants trade mark because it has its own market and its
own good will in India.

4. DOES THE RESPONDENT IS AT ALL USING THE TM

“HUMTUM” OF THE APPELLANT AND WHETHER THE
APPELLANT IS PROPRIETOR OF TM BY VIRTUE OF LONG
USER?

The respondent is using the trademark “HumTum” which is different in

designing than the TM “HuMTuM” of the appellant .The respondent’s
trademark is in different language and have different meaning. So we can
say that the respondent is not using the TM of the appellant.

Secondly , the appellant’s TM is registered outside India and it has no outlet

in India , the product of appellant’s are sold through online website which
gain popularity in recent years only before that there was no sign of
appellant’s trade mark.

Thirdly , the TM HumTum is a generic word heaving different meaning , so

the appellant cannot claim to be a sole proprietor of the TM.
 So, the appellant is not the proprietor of the TM by virtue of long user
as he was not using the TM in India. It was used outside India and also
registered outside India.

5. WHETHER THE TM OF THE APPELLANT HAD NO

RECOGNITION IN INDIA AT THE TIME WHEN RESPONDENT
STARTED USING THEIR TM AND IF SO , TO WHAT EFFECT?

Appellant applied for registration in India in May 2020 although the Hiralal
Mega brands comp. registered in India since 2014 with the TM “HumTum” .
Status of the application of the appellant was that it is sent to Vienna
codification and the company has secured its earliest registration for the
mark in the year 1970 in the UNITED KINGDOM, not in India.

So, we can say that there were very few customer base of the appellant in
India which was only through websites. And in India where 40 percent of
population is uneducated and don’t know how to operate on internet. It can
be said for the appellant’s product that their product does not have
much recognition in India at the time when respondent started business
and started using the TM.
 DETAIED PLEADINGS

1. IS THE SUIT FOR PASSING OFF BY THE APPELLANT

VALID?

NO , The suit for passing off by appellant will not be valid as:-

The essential characteristics for action of passing off as stated by Lord

Diplock in ERVEN WARNIK VS TOWNEND (1980) are:
(1) Misrepresentation,
(2) Made by a person in the course of trade
(3) To prospective customers of his or ultimate consumers of goods,
(4) Which is calculated to injure the business or goodwill of another
trader (in the sense that this is a reasonably foreseeable consequence ),
and
(5) Which causes actual damage to a business or goodwill of the trader by
whom the action is brought

PROOF OF DAMAGE:

The onus of proving the damage is on the appellant .

Although damage or likelihood of damage is the gist of an action for passing off,
to maintain an action, actual proof of damage is not necessary. The plaintiff may
prove either an intent to deceive or an actual damage and it is enough if he shows
that the conduct of the defendant was calculated or likely to deceive or mislead the
public. Thus the appellant must show that there is a reasonable probability of his
being injured by the defendant’s action, even if the conduct of the defendant might
be calculated to deceive the public.

On proof of these facts the plaintiff would be entitled to an injunction or damages.

(BORTHWICK VS EVENING POST (1888))
DEFENCES IN PASSING-OFF ACTIONS:

In an action for passing off the defendant may set up the following defences:

(1) The name, mark, etc., the use of which is sought to be restrained, is not
distinctive of the plaintiff’s goods or business.
(2) The defendant’s use of the name, mark, etc. is not such as to be likely to pass
off his goods/business as those of the plaintiff.
(3) The defendant has a right of his own to use the name , mark, etc. complained
of.
(4) The goods or business of the plaintiff and of the defendant are wholly
different .
(5) The plaintiff is not entitled to relief on account of delay , estoppels,
acquiescence, deceptive use of the mark, misrepresentation of facts or
fraudulent trade.

In S.M. DYECHEM LTD. VS CADBURY (INDIA) LTD.

Court give 3 test for dissimilarity :

(1) Is there any special aspect of the common feature which has been copied?
(2) Reference to the ‘mode’ in which the parts are put together differently ,i.e.
whether the dissimilarity of the part or parts is enough to make the whole
thing dissimilar?
(3) Whether when there are common elements , should not one pay more regard
to the parts which are not common , while at the same time not disregarding
the common parts? what is the first impression?

IN OUR CASE:

As to the first test, it is seen that the peculiar aspect of the common features of
HuMTuM namely the peculiar script and the curve have not been copied.

As to the second test , absence of the peculiar script in the letters, the curve and
the absence of flower(daisies) in the background , have made the whole thing look
dissimilar.
Then, as to the third test, the above three dissimilarities have to be given more
importance than the phonetic similarity and also the use of similarity is different as
the respondents use the word in context to its Hindi meaning “connected”.

On the first impression, the dissimilarities appear to be clear and more striking to
the naked eye than any similarity between the marks. Thus, on the whole, the
essential features are different.

IN CADILA HEALTH CARE LTD. VS CADILA PHARMACEUTICALS

(2001):

THE COURT OBSERVED THAT:

The principles laid by English courts cannot be applied in India in their entirety . A
purchaser / consumer in India cannot be equated with that in England. In a country
like India where there is no single common language , a large percentage of
population is illiterate and only a small fraction of people know English , then to
apply the English principles regarding dissimilarity of the marks of the plaintiff’s
goods seems to overlook the ground reality in India.

IN OUR CASE:

The class of purchaser of the respondent is different and that of the appellant is
different . the region of the both parties is also different .

Defences submit by the respondent are:

1) The essential feature of the TM of the respondent are different from the
appellant as they are using the TM in different language Hindi , Gujarati
and with different presentation.

2) There is no misrepresentation on the part of the respondent as they are using

the trade mark from a long time and they have their own customer base

3) The mark that is used is not distinctive of the plaintiff’s goods or business
because humtum is a very common name in India and used in various
meaning for various goods or services
 4) The defendant’s use of the mark is not in such a way as to be likely to pass
off his goods/business as those of the plaintif’s because it has its own name
and value in the market .and made substantial sale of their products and also
generated extensive sales through websits.

5) The plaintiff does not have any proof for trans border reputation in india
from the time it has registered in UK. Recently after many years of the
establishment of defendants business , the plaintiff thought of opening the
outlet in India and the sites through which the plaintiff is selling its goods
also came after the defendants business grown. It can be said that the
plaintiff is trying to use defendants reputation for their own goods and if
they get the passing off for the TM then the defendant will suffer a great
loss .

6) The defendant have established a parallel reputation to the plaintiff for their
products in India ; the plaintiff had no reputation and goodwill in India at
the time of adoption of mark by the defendant (reliance on case: Alkem
Laboratories ltd. Vs Mega international (P) Ltd. (2007))

7) The defendant honestly and bonafidely conceived and adopted the trademark
Hum Tum being a popular expression of Hindi language; and has been
continuously , extensively and uninterruptedly using the same since the year
2011.

2: DOES THE RESPONDENT’S USE OF THE TM “ Hum Tum”

AMOUNTS TO INFRINGEMENT OF APPELLANTS’ REGISTERED TM
“HuMTuM”?

NO , IT DOES NOT AMOUNTS TO INFRINGEMENT OF APPELLANT’S TM.

An action for Infringement of trade mark is a Statutory Right conferred by the
Act itself under Sec.27(1). It is conferred on the registered proprietor of a
registered TM for the vindication of the exclusive right to the use of TM in relation
to those goods. Thus it is based on the violation of a propriety right.

In order to constitute an infringement the act complained of must fulfill the

following requirements:

1) The mark used by the person must be either identical with or deceptively
similar to the registered trade mark;
2) The goods in respect of which it is used must be specifically covered by the
registration ;
3) The use made of the mark must be in the course of trade in areas covered by
the registration
4) The use must be in such manner as to render it likely to be taken as being
used as a trade mark.

Section 29(4) of the Trade Marks Act, 1999:

A registered trade mark is infringed by a person who, not being a registered

proprietor or a person using by way of permitted use, uses in the course of trade, a
mark which—

(a) is identical with or similar to the registered trade mark; and

(b) is used in relation to goods or services which are not similar to those for which
the trade mark is registered; and

(c) the registered trade mark has a reputation in India and the use of the mark
without due cause takes unfair advantage of or is detrimental to, the distinctive
character or repute of the registered trade mark.

( Sec. 30) Exceptions (when there is no infringement):

Limits on effect of registered trade mark.—
(1) Nothing in section 29 shall be construed as preventing the use of a registered
trade mark by any person for the purposes of identifying goods or services as those
of the proprietor provided the use—

(a) is in accordance with honest practices in industrial or commercial matters, and

(b) is not such as to take unfair advantage of or be detrimental to the distinctive

character or repute of the trade mark.

(2) A registered trade mark is not infringed where—

(a) the use in relation to goods or services indicates the kind, quality, quantity,
intended purpose, value, geographical origin, the time of production of goods or of
rendering of services.

(b) a trade mark is registered subject to any conditions or limitations, the use of the
trade mark in any manner in relation to goods to be sold or otherwise traded in, in
any place, or in relation to goods to be exported to any market or in relation to
services for use or available or acceptance in any place or country outside India or
in any other circumstances, to which, having regard to those conditions or
limitations, the registration does not extend;

(c) the use by a person of a trade mark in relation to goods/services for which the
registered owner had once applied the mark, and had not subsequently removed it,
or had impliedly consented to its use.

(d) the use of a trade mark by a person in relation to goods adapted to form part of,
or to be accessory to, other goods or services in relation to which the trade mark
has been used without infringement of the right given by registration under this Act
or might for the time being be so used, if the use of the trade mark is reasonably
necessary in order to indicate that the goods or services are so adapted, and neither
the purpose nor the effect of the use of the trade mark is to indicate, otherwise than
in accordance with the fact, a connection in the course of trade between any person
and the goods or services, as the case may be;

(e) the use of a registered trade mark, being one of two or more trade marks
registered under this Act which are identical or nearly resemble each other, in
exercise of the right to the use of that trade mark given by registration under this
Act.

IN OUR CASE:

1) The mark used by the respondent is not deceptively similar to the TM of the
appellant as stated by The District court .
2) The respondent is using the TM in India and the appellants TM is registered
in UK so the use of mark is the course of trade in areas covered by the
registration
3) The respondent has bonafidely use the TM , the respondent is selling the
goods in India and not in the foreign land where the appellant has registered
trade mark shows that respondent has no intention of misrepresentation and
is using the mark in its own goodwill.
4) No proof of damage has been shown by the appellant and no dilution to the
goods of the appellant had been made.
5) If the respondent wanted to use good will of the appellant than it would have
sold its product in UK also to gain max profit as the appellant is all over the
market in UK failing in doing so suggest that respondent wants to make his
own name have its own customer .

It is submitted before, the honorable court that no infringement have been made
by the appellant by using the TM which is a generic word ‘HumTum’.

3. WHETHER THE APPELLANT IS ENTITLED TO THE

PERMANENT INJUNCTION IN VIEW OF THE PRIOR USER OF
THE TM “HUMTUM ?

NO, The appellant is not entitled for the suit of permanent injuction in view
of prior user of the TM.

SECTION 135 of the Trade mark act 1999 lays down remedies which a
court can grant in any suit of infringement /passing off:
 I) Injunction (subject to such terms, if any, as the court thinks fit )
restraining further use of infringing marks
II) Damages or an account of profits (at the option of the plaintiff),
III) An order for delivery up of infringing labels and marks for destruction
or erasure.

The Code of Civil Procedure , 1908:

Contains order which provide the conditions for granting injuction. Order
39, rule 1&2 contains aforesaid provisions .

ORDER XXXIX: TEMPORARY INJUNCTIONS AND

INTERLOCUTORY ORDERS

Order-XXXIX, Rule-1. Cases in which temporary injunction may be granted.-

Where in any Suit it is proved by affidavit or otherwise—

(a) that any property in dispute in a suit is in danger of being wasted, damaged or
alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with
a view to defrauding his creditors,

(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury
to the plaintiff in relation to any property in dispute in the suit,the court may by
Order grant a temporary injunction to restrain such act, or make such other Order for
the purpose of staying and preventing the wasting, damaging, alienation, sale,
removal or disposition of the property or dispossession of the plaintiff, or otherwise
causing injury to the plaintiff in relation to any property in dispute in the suit] as the
court thinks fit, until the disposal of the suit or until further orders.
Order-XXXIX, Rule-2: Injunction to restrain repetition or continuance of
breach

(1) In any suit for restraining the defendant from committing a breach of contract or
other injury of any kind, whether compensation is claimed in the suit or not, the
plaintiff may, at any time after the commencement of the suit, and either before or
after judgment, apply to the court for a temporary injunction to restrain the defendant
from committing the breach of contract or injury complained of, or any breach of
contract or injury of a like kind arising out of the same contract or relating to the
same property or right.

(2) The court may by Order grant such injunction, on such terms, as to the duration
of the injunction, keeping an account, giving security, or otherwise, as the court
thinks fit.

In Power Contra/Appliances vs. Sumeet Machines (P) Ltd (1994):

The principles related to grant of interim injunction in trademark infringement

actions are well settled in this case by the apex court . The court observed :

It is necessary that the application for interlocutory injunction should be made

immediately after the plaintiff becomes aware of the infringement of the mark.
Improper and unexplained delay is fatal to an application for an interlocutory
injunction . The interim injunction will not be granted if the plaintiff has delayed
interfering until the defendant has built up a large trade in which he has used the
mark .

IN OUR CASE :

The respondent is using the mark from 2014 and already built a large trade and
customer base of its own by using the trade mark . If an injunction is granted to the
appellant it would create a huge damage to the respondent’s business . The
respondent will loose all his customers and will have to come in the today’s
competitive market from the starting and it is very difficult for a new company or
mark to reach such a huge market reputation so early.

It is submitted before the honorable court that injunction should not be granted
to protect the respondent from a damage beyond repair.
In Zenit Mataplast (P) Ltd. Vs State of Maharashtra ,(2009):

The apex court observed that:

Grant of injunction is goverened by three basic principles:

1) Prima facie case

2) Balance of convenience
3) Irreparable injury

Which are required to be considered in a proper perspective in the facts and

circumstances of particular case.

IN OUR CASE:

IT is humbly submitted before the honorable court that based on the above
three principles the injunction should not be granted as it ould cause an
irreparable injury to the respondents business. It is prima facie not an
infringement case .

That merely because the plaintiff are a registered proprietor and have
international reputation does not necessarily mean that a temporary injunction
must follow as can be seen in ROCA Sanitario S.A. vs Naresh Kumar Gupta
(2010).

4. DOES THE RESPONDENT IS AT ALL USING THE TM

“HUMTUM” OF THE APPELLANT AND WHETHER THE
APPELLANT IS PROPRIETOR OF TM BY VIRTUE OF LONG
USER?

The respondent is using the trademark “HumTum” which is different in

designing than the TM “HuMTuM” of the appellant .The respondent’s
trademark is in different language and have different meaning. So we can
say that the respondent is not using the TM of the appellant.
 Secondly , the appellant’s TM is registered outside India and it has no outlet
in India , the product of appellant’s are sold through online website which
gain popularity in recent years only before that there was no sign of
appellant’s trade mark.

Thirdly , the TM HumTum is a generic word heaving different meaning , so

the appellant cannot claim to be a sole proprietor of the TM.

So, the appellant is not the proprietor of the TM by virtue of long user
as he was not using the TM in India. It was used outside India and also
registered outside India.

5. WHETHER THE TM OF THE APPELLANT HAD ANY

RECOGNITION IN INDIA AT THE TIME WHEN RESPONDENT
STARTED USING THEIR TM AND IF SO , TO WHAT EFFECT?

Appellant applied for registration in India in May 2020 although the Hiralal Mega
brands comp. registered in India since 2014 with the TM “HumTum” . Status of
the application of the appellant was that it is sent to Vienna codification and the
company has secured its earliest registration for the mark in the year 1970 in the
UNITED KINGDOM, not in India.

So, we can say that there were very few customer base of the appellant in India
which was only through websites. And in India where 40 percent of population is
uneducated and don’t know how to operate on internet. It can be said for the
appellant’s product that their product does not have much recognition in
India at the time when respondent started business and started using the TM.
 PRAYER

Wherefore , in the light of the authorities cited, issue raised and arguments
advanced , it is most humbly pleaded before the Hon’ble court that it may
adjudge and declare:

• Both the sides are respective owner of their trade mark

• No infringement was made by the respondent Hiralal Megabrands Pvt
Ltd.
• No passing off made by the respondent Hiralal Megabrands Pvt Ltd.
• An injunction should not be granted to the appellant for restraining the
Hiralal Megabrands from using the trade marks .

And pass such other and further order(s) as may be deemed fit in interest of justice
, equity ,good conscience and fair play and proper on the facts and in the
circumstances of this case.

And for this, the Respondent as in duty bound shall humbly pray.

SD/-

(COUNCEL FOR THE RESPONDENT)