TINUBHAI BABUBHAI BHALGAMA vs ALPESHBHAI RANCHHODBHAI LUNAGARIYA
- Court
- Gujarat High Court
C/AO/82/2026 JUDGMENT DATED: 28/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 82 of 2026
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In R/APPEAL FROM ORDER NO. 82 of 2026
=============================================
TINUBHAI BABUBHAI BHALGAMA & ORS.
Versus
ALPESHBHAI RANCHHODBHAI LUNAGARIYA & ORS.
=============================================
Appearance:
MS RUSHVI N SHAH(5881) with MR ZAHID K SHAIKH, MR
JAWAD Z SHAIKH and MR ARBAZ A SAIYED for the Appellant(s)
No. 1,2,3,4
MR CHANDRA KANT for the Respondent(s) No. 1
MR KRUNAL G PATEL(8525) for the Respondent(s) No. 1
NOTICE THROUGH SPEED POST SERVED for the Respondent(s)
No. 2,3,4,5,6,7,8,9
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CORAM: HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 28/07/2026
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
1. Heard learned counsels for the parties and perused the
record.
2. This appeal under Order 43 Rule 1(r) of the Code of Civil
Procedure has been filed against an interlocutory order dated
09.03.2026, passed by the Commercial Court/6th Additional
District Judge, Rajkot, granting interim injunction by allowing
Exhibit 5 in a Trademark Suit, viz. Commercial Trademark
Suit No. 2 of 2025.
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3. From a perusal of the judgment impugned, it is
noteworthy that the plaintiff, claiming to be an established
business of jewellery products and various jewellery items,
articles of imitation jewellery, jewellery with ornamental
stones, etc., has instituted the aforesaid suit against the
appellants/defendants therein for passing off and
infringement of trademark and damages. During the pendency
of the suit, temporary injunction has been sought restraining
the defendant and his assignees/representatives, etc., from
using the trademarks "Aditya Jewellers” “Aditya Jewels”,
“Adityam Jewels” and "Aditya Fashion".
4. The contention of the plaintiff, as noted in the judgment
impugned, is that the plaintiff is a proprietorship firm in the
name of Aditya Jewellers, having its business place at Rajkot,
in the State of Gujarat. The plaintiff is the oldest and leading
jewellers in India and has adopted the trademarks "Aditya",
"Aditya Jwelers", and "Aditya Jewellers", since 28.03.2007
and has also applied for registration of the trademark "Aditya
Jewellers" under Application No. 6359619, dated 21.03.2024,
which is pending before the competent Registrar.
5. Various assertions have been made in the plaint about
the plaintiff being the first jeweller in Rajkot to obtain BIS
Hallmark licence for gold jewellery in the year 2011, and
throughout long, continuous, and extensive use of the
trademark "Aditya Jewellers", by advertisement and publicity,
the plaintiff has acquired significant goodwill and
distinctiveness, and is exclusively associated with the
trademark "Aditya Jewellers". The further contention is that
the plaintiff has bona fide and honestly adopted the said
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trademark in the year 2007, and the goods being sold by the
plaintiff under the said trademark are known for their
superior quality, resulting in large sales volumes and
substantial revenue generation.
6. The plaintiff has invested considerable amounts in
marketing, promotion and advertisement, etc. and it is
claimed that by virtue of such prior and extensive use,
coupled with substantial sales, the trademarks "Aditya",
"Aditya Jwelers" and "Aditya Jewellers", have acquired
equitable goodwill and reputation, and became a well-known
mark within the meaning of Section 2(zg) of the Trademarks
Act, 1999, having also acquired secondary meaning.
7. It is further submitted that the plaintiff recently came to
know of various trademark applications filed by the
defendants for identical marks or deceptively similar to the
plaintiff's mark, which include "Aditya Jewellers",
"AdityaJewels", "Adityam Jewels", "Aditya Fashion" and other
variations thereof. It is contended that the applications of the
defendants for use of the aforesaid mark is in respect of
identical goods falling in Class 14. The contention, thus, is
that the defendants have adopted and used the impugned
mark dishonestly and with mala fide intention to ride over the
goodwill and reputation of the plaintiff, and cause confusion in
the market.
8. The plaintiff has, thus, heavily pressed its case on one
factor of being original and prior adopter and user of the mark
"Aditya", "Aditya Jwelers", and "Aditya Jewellers".
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9. However, a perusal of the order impugned indicates that
the defendants in their written statement have come out with
the categorical assertions that the present suit is false,
frivolous, and vexatious, and is not maintainable either in law
or facts. The plaintiffs have no cause of action for filing the
proceedings for passing off or infringement.
10. The defendants are the prior, continuous and bona fide
users of the mark "Aditya Jewellers" since 09.05.2002, and
they are the registered proprietors of the said mark. In
support of this contention, the registration certificates, sale
invoices, balance sheets, income tax returns, user affidavits,
and other relevant documents were annexed along with the
written statement and it was categorically pleaded that in
view of Section 27(1) of the Trademarks Act, 1999,
infringement proceedings in respect of an unregistered mark
are not maintainable, and the defendants being registered
proprietors, are protected under Section 28 of the
Trademarks Act, 1999.
11. It is the case of the defendants in the written statement
that the plaintiff has suppressed material facts, produced
selective and contradictory documents, and failed to establish
continuous use since 28.03.2007, as claimed. Many of the sale
invoices of the plaintiff begin only from the year 2014, balance
sheets were of the year 2017-18, and the promotional
documents are from 2021 onwards, which contradict the
plaintiff's assertion of a long-standing goodwill and
reputation. It is also the case of the defendants that the
Registrar had raised objection against the plaintiff's
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trademark under Section 11(1) of the Act, 1999, which further
demonstrates the existence of prior similar marks on record.
12. The whole claim of the plaintiff of having goodwill,
misrepresentation or damage, which are essential ingredients
of passing off against the defendants, are unsustainable. The
plaintiff has not come with clean hands and filed the suit with
mala fide intention arising out of business rivalry. There is no
prima facie case in favour of the plaintiff and the balance of
convenience rather lies in favour of the defendants.
13. Taking note of the contentions of both the parties in
their respective pleadings, namely the plaint and the written
statement, the trial court has returned the findings in
paragraphs ‘17 to 25’, which reads as under :-
“17. Heard learned counsels for the respective parties
and perused the case file very carefully. This Court has
gone through the aforesaid judgments cited by the
respective parties. This Court has also gone through the
written arguments filed by the plaintiff as well as
defendant no. 1 to 4.
18. The plaintiff has instituted the present suit
contending that he has been carrying on business in the
name and style of "Aditya Jewellers" since the year 2007.
The Defendant, in his written statement and
submissions, has contended that he has been carrying on
business under the name "Aditya Jewellers" since the
year 2002. The Defendant obtained registration of his
trademark in the year 2021 and has produced the
Registration Certificate on record. The Plaintiff, on the
other hand, does not hold any trademark registration.
19. In order to establish that he is the prior user, the
Defendant has produced certain documentary evidence,
including approximately five bills for the period from
2002 to 2006. Upon perusal of the said bills, it appears
that only one bill for each year has been produced.
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Further, the said bills neither disclose any full address of
the concerned party, nor consist siganture of any
authorized person The remaining bills are computerized
bills which do not mention any VAT or GST number and
signature of receiver party. Prima facie, the said bills do
not appear to be reliable and seem to have been
subsequently created.
20. The Defendant has stated that he commenced
business in the ear 2002 and has shown his turnover for
the year 2023 as Rs. 60,00,000/-. The Plaintiff has stated
that he commenced. business in the year 2007 and has
shown his turnover for the year 2023 as Rs.
30,00,00,000/-. In support of his claim, the Plaintiff has
produced bills, balance sheets, Chartered Accountant's
certificate, registration certificates, VAT number, GST
number, details of advertisements undertaken for his
business, expenses incurred towards such
advertisements, and customers' invoices.
21. Even assuming, for the sake of argument, that the
Defendant has been carrying on business since 2002 and
the Plaintiff since 2007, the turnover of the Plaintiff is
nearly fifty times that of the Defendant. The Plaintiff has
undertaken large-scale advertisements and has also
promoted his business through social media Despite this,
the Defendant has not, till date, instituted any
proceedings against the Plaintiff, nor issued any notice,
nor raised any objection regarding the Plaintiff's
trademark.
22. In view of these facts, it appears that the Plaintiff is
the prior user. The Plaintiff has further stated that
couriers and customers frequently approach the Plaintiff,
and that the Defendant is wrongfully using the Plaintiff's
trademark, thereby causing substantial loss to the
Plaintiff's business. Considering the Plaintiff's turnover
and customer base, it is evident that he has established
goodwill and reputation in the market. The Plaintiff has
also obtained registration of his "A" mark trademark in
the year 2019 and has filed an application before the
Registrar seeking cancellation of the Defendant's
trademark.
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23. Thus, considering the submissions advanced by the
Plaintiff and the documentary evidence produced on
record, the Plaintiff has established a prima facie case.
The balance of convenience also lies in favour of the
Plaintiff. The competing claims of prior use involve
disputed questions of fact which cannot be conclusively
determined without evidence.
24. The plaintiff's business operations are on a
significantly larger scale compared to those of the
defendant. If the defendant is permitted to continue use
of an identical or deceptively similar mark during
pendency of the suit, there exists a real possibility of
consumer confusion and dilution of the plaintiff's
goodwill. With regard to irreparable injury, it is well
settled that goodwill and reputation are intangible assets
which cannot be precisely quantified in monetary terms.
The erosion or dilution of brand identity, once permitted,
may cause damage which cannot be easily undone. In
the facts of the present case, continued parallel use of
the same trade name in the same line of business is
likely to cause confusion among consumers and
adversely affect the plaintiff's brand value. Such injury
would not be adequately compensable in damages.
Furthermore, this Court has placed reliance upon the
judgment of Hon'ble Apex Court in the case of Satyam
Infoway Ltd. v. Sifynet Solutions (P) Limited -2004 (6)
SCC 145, it is held that "It is not essential for the
plaintiff to prove long user to establish reputation in a
passing off action. It would depend upon the volume of
sales and extent of advertisement." If an injunction is not
granted, the Plaintiff is likely to suffer irreparable loss
which cannot be adequately compensated in monetary
terms.
25. Hence, in view of the aforesaid discussion, plaintiff is
required to be protected and therefore, present
application at Exh. 5 is required to be allowed and
accordingly, this Court pass following order:”
-// ORDER //-
(i) Application Exh. 5 stands allowed.
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(ii) The defendants No. 1 to 4, their proprietors,
partners, agents, servants, employees, assigns,
representatives, dealers, distributors and all other
persons acting on their behalf are hereby restrained till
pendency of the main suit from soliciting, networking,
manufacturing, marketing, packaging, using, exporting
or directly or indirectly including online market places
and E-commerce websites or through social media,
dealing in the goods being Jewellery and Jewellery
products including their imitation and any other allied
and cognate goods under the trademark ADITYA
JEWELLERS or any other identical and / or similar
deceptively trademark / label /packaging / trade dress to
that of the plaintiff's trademark "Device of A", "ADITYA
JWELLERS", and "ADITYA JEWELLERS" whether being
used independently or with any prefix or suffix thereby
amounting to infringement of the device
mark/trademark/label of the plaintiff and passing off and
violation of the device mark / trademark / lable of the
plaintiff and indulging in falsification and unfair and un-
ethical trade practices.
( iii) It is clarified that nothing observed herein shall be
construed as an expression on the merits of the case at
trial, and the observations are confined to the
adjudication of the present interim application.
(iv) The cost of this application shall be decided at the
time of final disposal of the suit.”
14. From a bare reading of the said findings, it is evident
that the trial court has accepted the claim of the defendants
being registered trademark owners of the mark "Aditya
Jewellers", registration of which was obtained in the year
2021 and has noted that the registration certificate produced
by the defendants is on record.
15. It is also noted by the trial court that the defendants
have produced documentary evidences, including bills, for the
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period from 2002 to 2006. However, it has further noted that
only one bill for each year had been produced. The remaining
bills though are computerized bills, but they do not mention
any VAT or GST number and signature of the receiving party.
16. With these findings, the trial court has opined that the
bills produced by the defendants do not appear to be reliable
and seem to have been subsequently created. The finding
returned by the trial court in paragraph ‘19’ of the judgment
impugned to discard the evidence produced by the defendants
along with the written statement is completely contrary to the
spirit of the law pertaining to the grant of temporary
injunction, which rests on three ingredients, “prima facie
proof, balance of convenience and irreparable loss”, which are
to be established by the plaintiff and not by the defendants.
17. Further, it is settled that at the stage of temporary
injunction, no mini trial can be conducted and the court will
make an effort to find out the case of the plaintiff from the
plaint itself and the evidence produced by it, on a prima facie
look, as to whether the plaintiff has made out its case for
grant of temporary injunction.
18. In any case, in the process of grant of temporary
injunction, evaluation of evidence of the parties on the weight
of it or the reliability or sufficiency thereof, cannot be looked
into. In any case, the defendants' evidence cannot be
discarded at the stage of grant of temporary injunction on the
premise of being unreliable documents when no trial can be
conducted at that stage.
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19. The fact remains that the defendants, by bringing some
evidence on record, had proved that he had commenced
business in the year 2002 and his turnover for the year 2023
was Rs. 60 lakhs and further, that he is a registered
trademark owner of the mark "Aditya Jewellers", with respect
to which the plaintiff has sought injunction.
20. It is also an admitted fact, as noted in the judgment
impugned, that the plaintiff does not hold any trademark
registration and, on its own, claimed to be using the
trademark since the year 2007, though would base its claim
on the assertion of having acquired goodwill its effort of due
publicity of the trademark and bringing good quality goods in
the market.
21. Be that as it may, on two undisputed facts, i.e., the
defendants being a registered trademark owner, entitled to
the protection under Section 28 of the Trademarks Act, 1999,
and also being the prior user of the said mark, the case of the
plaintiff about infringement and passing off by the defendants
under the trademark of the plaintiff, at least, could not be said
to have been proved prima facie.
22. The question as to whether the plaintiff has acquired
goodwill by continuous usage of the trademark "Aditya
Jewellers" since the year 2007, or the trademark is a well-
known trademark as claimed under Section 2(zg) of the
Trademarks Act, 1999, and is entitled for injunction against
the defendants, who are registered trademark owners, on the
premise that the defendants are not using the said mark since
the year 2002 and started using it only recently, are the
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questions to be decided at the stage of trial, after evidence
are led by the parties.
23. The assertion with regard to the dishonest adoption of
trademark by the defendants, with respect to which the
plaintiff, has acquired goodwill or reputation in India, cannot
be said to be proved prima facie merely by looking to the
turnover of the plaintiff.
24. The question as to whether the plaintiff is entitled for
relief of infringement of the registered trademark against the
defendant, for the plaintiff's trademark being a well-known
trademark having reputation in India, is to be tried
considering the provisions of Section 29 of the Trademarks
Act, 1999.
25. There is no question of dishonest adoption by the
defendants for the simple reason that the defendants are the
prior user, and have got registration of the trademark, as per
own case of the plaintiff in the year 2021, much prior to the
institution of the suit. For the above, the main ingredient for
grant of temporary injunction, namely, prima facie case has
not been proved in favor of the plaintiff. The other two
ingredients, in any case, do not lean in favour of the plaintiff
for the mere fact that the prima facie case for grant of
temporary injunction has not been proved, in view of the
reasoning given above.
26. With the above, we find that the trial court has
committed a grave error of law in granting temporary
injunction in favour of the plaintiff with the wrong finding in
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paragraph ‘22’, that it appears that the couriers and
customers frequently approaching the plaintiff communicated
that the defendants are wrongfully using the plaintiff's
trademark, thereby causing substantial loss to the plaintiff's
business. The trial court has committed a grave error of law
in granting injunction merely considering the plaintiff's
turnover and customer base, to hold that he has established
goodwill and reputation in the market, which was actually the
subject matter of trial.
27. With the above, we reach at an irresistible conclusion
that the temporary injunction granted against the
defendants/appellants herein vide judgment and order dated
09.03.2026 in Exhibit 5 filed in Commercial Trademark Suit
No. 2 of 2025 cannot be allowed to sustain. The judgment and
order dated 09.03.2026 passed below Exhibit 5 in Commercial
Trademark Suit No. 2 of 2025 is accordingly, set aside.
28. The appeal stands allowed. No order as to costs.
Connected civil application would not survive and shall stand
disposed of, accordingly.
29. It is clarified that the trial court shall decide the suit
independently on the evidence led by the parties, without
being influenced by any of the observations made
hereinabove.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
BIJOY B. PILLAI
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