4

TABLE OF CONTENTS

1. INDEX OF AUTHORITIES .................................................................................................. 3

2. LIST OF ABBREVIATIONS ................................................................................................. 4

3. STATEMENT OF JURISDICTION ..................................................................................... 5

4. STATEMENT OF FACTS ..................................................................................................... 6

5. STATEMENT OF ISSUES ..................................................................................................... 7

Issue I- Whether Hiralal Megabrands Pvt Ltd is liable for infringing and passing off
trademark of Hummingwayy and Tumblrr Pvt Ltd?

Issue II- Whether the trademark registered outside Indian Territory recognized in India?

Issue-III- Whether the trademark adopted with honest and bonafide intention?

Issue IV- Whether interim injunction can be granted by this Court?

6. SUMMARY OF ARGUMENTS ............................................................................................. 8

7. DETAILED PLEADINGS .................................................................................................... 10

8. PRAYER ................................................................................................................................ 18
 1
2
MEMORIAL FOR LB-501: MOOT COURT, MOCK TRIAL AND INTERNSHIP

INDEX OF AUTHORITIES

BEFORE
STATUTES
THE HON'BLE HIGH COURT OF DELHI
1. The Constitution of India 1950
2. The Trade Marks Act, 1999
CIVIL APPELATE JURISDICTION
3. The Delhi High Court Act, 1966
4. Code of civilREGULAR
procedure, 1908
CIVIL APPEAL NO OF 2023 (UNDER
5. Specific relief Act, 1963
SECTION 96 of Civil procedure code, 1908)

CASES
IN THE MATTER OF:

1. Erven Warnick B.V v. J. Townend & Sons(Hull)Ltd., [1979] 2 All ER 927; 2.

Hummingwayy
Laxmikant V. Pateland Tumblrr Pvt
v. Chetanbhat Ltd
Shah ..........................................................
and Another, 2001 Indlaw SC 19796. Petitioner

3. Reckitt & Colman Ltd v Borden Inc., [1990] 1 All E.R. 873.
VERSUS.
4. Shree Nath Heritage Liquor Private Limited and another v. Allied Blender and
Distillers Private Limited, 2015 Indlaw DEL 5658.
5.Hiralal
ToyotaMegabrands Pvt. Ltd
Jidosha Kabushiki .....................................................................
Kaisha v Prius Auto Industries Limited and others, Respondent 2017
Indlaw SC 1100.
6. Wander Ltd. v. Antox India Pvt. Ltd., 1990 (Supp) SCC 227.

BOOKS AND ARTICLES REFERRED.

MEMORANDUM ON BEHALF OF THE RESPONDENTS
1. ASHWANI KR. BANSAL, COMMERCIAL’S LAW OF TRADEMARKS IN
INDIA (1st ed. 2003)
2. Counsel
HALSBURY’S on behalf
LAWS of Respondent
OF ENGLAND (4th ed., 2008)
3. J. THOMAS MCCARTHY, MCCARTHY ON TRADEMARKS AND
UNFAIR COMPETITION
Name:- (4th
Shivansh ed. 2012)
Saini
4. KERLY, LAW OF TRADE MARKS AND TRADE NAMES (15th ed., 2011)
5. College Roll
P. NARAYANAN, LAWNo-212475
OF TRADEMARKS AND PASSING OFF (6th ed., 2007)
6. VENKATESWARAN, TRADEMARKS AND PASSING OFF (5th ed., 2010)
Exam Roll No-21311806775

WEBSITES
1. www.scconline.com
2. www.westlaw.com
3. www.manupatra.com
3

LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM

& And

SCR Supreme Court Reporter

AIR All India Reporter

Anr. Another

Ed. Edition

u/s Under Section

SC Supreme Court

HC High Court

SCC Supreme Court Cases

Sec Section

TMA Trade Marks Act, 1999

v. Versus

Hon’ble Honourable

HM Hiralal Megabrands Pvt

Ltd
4

STATEMENT OF JURISDICTION

The Respondent humbly submits that the Hon’ble high Court does not have jurisdiction
under Section 96 of Code of Civil Procedure, 1908.

Section 134 reads- Suit for infringement, etc., to be instituted before District Court.
(1) No suit—

(a) for the infringement of a registered trade mark; or

(b) relating to any right in a registered trade mark; or

(c) for passing off arising out of the use by the defendant of any trade mark which is
identical with or deceptively similar to the plaintiff’s trade mark, whether
registered or unregistered, shall be instituted in any court inferior to a District
Court having jurisdiction to try the suit.

(2) For the purpose of clauses (a) and (b) of sub-section (1), a “District Court having
jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure,
1908 (5 of 1908) or any other law for the time being in force, include a District Court
within the local limits of whose jurisdiction, at the time of the institution of the suit or
other proceeding, the person instituting the suit or proceeding, or, where there are more
than one such persons any of them, actually and voluntarily resides or carries on
business or personally works for gain.

Explanation.—For the purposes of sub-section (2), “person” includes the registered

proprietor and the registered user.

The object of the provisions was to enable the plaintiff to institute a suit at a place where he
or they resided or carried on business, not to enable them to drag defendant further away
from such a place also as is being done in the instant cases. The grounds taken by the
Defendant in suit filed in the District Court seeking rejection of the plaint are:

i) that the Delhi High Court does not have territorial jurisdiction;

ii) that there is no registration of the trademark therefore it cannot be termed as 'person'
 iii) that the appellant conduct business activities independent of the jurisdiction of the
Delhi High Court .

iv) that the appellant has filed suit far away from defendant actual and voluntary
resident in order to harass the defendant acting contrary to the object of the code .

v) that there is no triable issue that arises as all the point on law and on facts are
already judicially entertained by The District Court .

According to sec 134 of Trade Mark Act , 1999 The District court means a place where the
person filing the suit actually and voluntary reside or , carries out the business or work for
personal gain . Here person means the Institution / organization and that must be a registered
one while according to the fact of the case Hummingway and Trumblrr Pvt Ltd Is not
registered in India and therefore no jurisdiction lies with the District Court to hear the matter
and in same line The High Court also lacks the jurisdiction under Section 96 of CPC.

6
 STATEMENT OF FACTS

Hummingwayy and Tumblrr Pvt Ltd, based in Norway is the proprietor of the
trademark ‘HumTum’ [written in a stylised 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. With the boost in e-commerce, products of the company are
available in India through Amazon/ Myntra and other similar online shopping service
providers.

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. 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’. So, Hummingwayy and Tumblrr Pvt Ltd filed a suit for passing off,
against Hiralal Megabrands.

In May, 2020, the petitioner 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.

The Respondent, Hiralal Megabrands Pvt. Ltd registered in India since 2014. ‘Hum
Tum’ is quite a familiar brand amongst the lovers of affordable clothing in India.

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. The
District Court at Delhi held that there was no passing-off made out as the TMs were
quite different in appearance. 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

6
business as the plaintiffs and ignored a number of (other) parameters while deciding the
case.

STATEMENT OF ISSUES

ISSUE I- Whether Hiralal Megabrands Pvt Ltd is liable for infringing and passing off
trademark of Hummingwayy and Tumblrr Pvt Ltd?

ISSUE II- Whether the trademark registered outside Indian Territory recognized in
India?

ISSUE-III- Whether the trademark adopted with honest and bonafide intention?

ISSUE IV- Whether interim injunction can be granted by this Court?

7
 SUMMARY OF ARGUMENTS

ISSUE I: Whether Hiralal Megabrands Pvt Ltd Is Liable For Infringing And
Passing Off Trademark Of Hummingwayy And Tumblrr Pvt Ltd?

It is humbly submitted before this Hon’ble Court that Hiralal Megabrands Pvt Ltd has
not infringed the trademark of Hummingwayy and Tumblrr Pvt Ltd since both of them
are registered proprietors of the impugned trademark ‘Hum Tum’ and section 28(3) of
the Trade Mark Act, 1999 provides that use of trademark one of the two registered
proprietors does not amount to infringement.

Further, the use of the impugned trademark does not amount to passing off as there has
been no misrepresentation by the Hiralal Megabrands Pvt Ltd and the use of the
trademark is to earn benefits out of its own goodwill and reputation.

ISSUE II: Whether The Trademark Registered Outside Indian Territory

Recognized In India?

It is humbly submitted before this Hon’ble Court That Section 34 provides that a
proprietor of a trade mark does not have the right to prevent the use by another party of
an identical or similar mark where that user commenced prior to the user or date of
registration of the proprietor. This is commonly referred to as “First user” rule which is
a seminal part of the Trade Marks Act.

While Section 28 confers an exclusive right on the registered proprietor of a trade mark
to use the mark and also to prevent others from using an identical or deceptively similar
mark, one of its exception is enunciated under Section 34 which gives rights to a user
when its user is prior to the user of the proprietor and prior to the date of registration of
the proprietor, whichever is earlier.

8
However, when it comes to Section 34 and interpretation of the word prior use, Indian
courts have held that the prior use must be understood to refer to “use” within the
territory of India and not abroad. The Hon'ble High Court of Calcutta in a case titled
Lowenbrau AG and Others versus Jagpin Breweries Ltd. and Others (reported as
157(2009)DLT791).

ISSUE-III: Whether The Trademark Adopted With Honest And Bonafide

Intention?

It is humbly submitted before this Hon’ble Court that the District Court on receiving
the evidence regarding ‘Honest and bonafide intention of Respondent in using the
trade mark’ has decided the case in the favour of respondent and the High Court should
appreciate the evidence through the eyes of the trial judge.

ISSUE IV: Whether Interim Injunction Can Be Granted By This Court?

It is humbly submitted before this Hon’ble Court that there exists no prima facie case
and the balance of convenience lies in favour of the Hiralal Megabrands Pvt Ltd and no
irreparable injury is being caused to the petitioner and hence, the application filed by
the Plaintiffs seeking interim injunction against products by Hiralal Megabrands Pvt
Ltd shall be dismissed. The application for interim injunction cannot be granted in the
facts and circumstances of the present case.

ARGUMENTS ADVANCED

ISSUE I: Whether Hiralal Megabrands Is Liable For Infringing And Passing

Off Trademark Of Hummingwayy And Tumblrr Pvt Ltd?

9
 1. It is humbly submitted before this Hon’ble Court that The case of the appellant
lies on the basis of deceptive resemblance. For deceptive resemblance two
important
questions are:

(1) Who are the persons whom the resemblance must be likely to
deceive or confuse, and
(2) What rules of comparison are to be adopted in judging whether
such resemblance exists. As to confusion, it is perhaps an appropriate
description of the state of mind of a customer who, on seeing a mark
thinks that it differs from the mark on goods which he has previously
bought, but is doubtful whether that impression is not due to
imperfect recollection.

The District Court must have considered all relevant questions and then decided the
case in favour of respondent -

1. Since microscopic examination is impermissible so On comparing the marks as a

whole there is no similarity between the two marks.

2. Marks are remembered by general impressions or by some significant detail rather

than by a photographic recollection of the whole, and in our case on seeing the
significant details of both the trade mark there is no scope of confusion.

3. On looking both the marks from the view and first impression of a person of
average intelligence and imperfect recollection confusion between the marks can
be out rightly rejected.

4. Finally the District Court must have considered the nature of the commodity, the
class of purchasers, the mode of purchase and other surrounding circumstances
before giving its judgment in favour of respondent.

10
 District Court after considering all the facts and circumstances held that there was
neither infringement nor passing off because- 1. The trademarks were quiet
different in appearance.
2. Both the brands operated in two very different territories.
3. The defendant honestly and bonafidely conceived and adopted the trademark
‘hum tum’ being a popular expression of hindi language.

2. It is humbly submitted before this Hon’ble Court that Hiralal Megabrands Pvt Ltd
(hereinafter “HM”) is neither (A) liable for infringement of the petitioner’s trademark
‘HuM TuM’ under section 29 of the TMA nor (B) liable for passing off
his product as petitioner’s product.

HM is not liable for infringement under the TMA

3. It is humbly submitted that section 29 of the TMA provides that a trademark is
infringed by a person who “uses in the course of trade” a mark which is identical with
or deceptively similar to the registered mark in such manner such as to render the “use
of the mark likely to be taken as being used as trademark”, such as is “likely to
cause confusion”.

4. In the instant case, keywords ‘Hum Tum’ have been Registered by HM. Assuming
that the word ‘HuMTuM’ is a registered trademark of petitioner, then also, as regards
the keyword ‘Hum Tum’, there cannot be any claim for infringement since it is very
distinct from ‘HuMTuM’, both in terms of spelling and phonetics.

5. As regards the use of keyword ‘Hum Tum’’ is concerned, the same is registered in the
name of HM and also the petitioner. Section 28(3) of the TMA is relevant here as it
contemplates a situation where two or more persons are registered proprietors of the
trademarks which are identical with or nearly resemble each other.

6. It, thus, postulates a situation where same or similar trademark can be registered in
favour of more than one person. On a plain stand-alone reading of this Section, it is
clear that the exclusive right to use of any of those trademarks shall not be deemed to
have been acquired by one registrant as against other registered owner of the
11
 trademark (though at the same time they have the same rights as against third person).
Therefore, the use of the keyword ‘Hum Tum’’ by HM does not amount to
infringement since HM itself is a registered proprietor of the impugned trademark.

Assuming that HM is not the registered proprietor of the trademark ‘Hum Tum’’ then
also in order to claim infringement by HM, the petition needs to prove that use of
word ‘Hum Tum’’ is likely to create confusion in terms of section 29 of the TMA.
In Shree Nath Heritage Liquor Private Limited v. Allied Blender and Distillers
Private Limited1, this Hon’ble Court notes that “Likelihood of confusion may be
proved in many ways, such as:
(a) Through survey evidence;

(b) By showing actual confusion;

(c) Through arguments based on a clear inference arising from a comparison of the
marks in question and the context in which the marks are used;
(d) Under Section 29 of the Trademarks Act, 1999, confusion is presumed if the
marks are identical and are used for identical goods/ services.”

7. In the instant case, it is humbly submitted that neither survey evidence has been
presented nor actual confusion has been shown nor any clear inference can be drawn
of confusion from a comparison of the marks in question and the context in which the
marks are used. The petitioner’s and the respondent’s good are inherently. Moreover
both the goods fall in different classes. The same reasoning of distinctiveness of goods
precludes the presumption under section 29 as aforementioned.

1
Shree Nath Heritage Liquor Private Limited and another v. Allied Blender and Distillers Private Limited
2
Erven Warnick B.V v. J. Townend & Sons(Hull)Ltd., [1979] 2 All ER 927; IYENGAR’S,
COMMENTARY ON THE TRADEMARKS ACT 738 (4th ed., 2011).

HM is not liable for passing off his goods as that of the petitioner

8. It is humbly submitted that the essential characteristics of a passing off action are:
misrepresentation made by a person in the course of trade, made to the prospective
12
 consumers which is calculated to injure the reputation and goodwill of another trader
and causes actual damage to a business or goodwill of the trader by whom the action
is brought.2

9. The aforementioned characteristics have been reiterated in Reckitt & Colman Ltd v.
Borden Inc.1 wherein following test has been laid down for determination of
passingoff:

a. Goods and services of the plaintiff must enjoy reputation and goodwill,
such that they are distinguished from others in the market;

b. Misrepresentation of the goods and services from the defendant, either intentional or
unintentional, causing consumers to be confused into
drawing an association between such goods and those of the defendant;

c. The plaintiff must suffer damage to such goodwill as a result of the

misrepresentation of the plaintiff and the defendants.

10. In other words, in order to prove and establish an action of passing off, three
ingredients are required to be proved by the plaintiff, i.e., his goodwill,
misrepresentation and damages.2

11. It is humbly submitted that the use of term ‘Hum Tum’’ alone does not amount to
misrepresentation. In the entire scheme of things, HM is a registered proprietor of the
trademark ‘Hum Tum’’ and therefore, it has purchased the term ‘Hum Tum’’ on
Jabong, Myntra, Amazon and other e-commerce websites to make use of its
trademark. HM has reputation and goodwill of its own and by using the trademark
‘Hum Tum’’, there has been no misrepresentation of goods of the respondent as
goods of the petitioner.

1 Reckitt & Colman Ltd v Borden Inc., [1990] 1 All E.R. 873.
2 Toyota Jidosha Kabushiki Kaisha v Prius Auto Industries Limited and others, 2017 Indlaw SC 1100.
13
 ISSUE II: Whether The Trademark Registered Outside Indian Territory
Recognized In India?

12. It is most humbly submitted that Hiralal Megabrands Pvt Ltd is an Indian company
based in Gujarat but having presence throughout India and the Middle-East. ‘Hum
Tum’ is a registered trademark of HM and got registered in India in the year 2014.
Whereas Hummingwayy and Tumblrr Pvt Ltd is a company based in Norway and has
not yet been registered in India.

13. What comes out from the above is that the Trade Mark law is not extra territorial that
use of trademark in foreign countries under foreign registration can be “use” within the
meaning of the Trade Marks Act. Moreover, the preamble of the Act confined its
operation to the territorial limits of India. Section 1(2) 3 of the Act extends it to the
whole of India. All the above referred principles makes it amply clear that the word
“use” employed in Section 34 of the Act is use within India. Therefore, if a proprietor
of a trade mark set up a case of prior use of outside India under Section 34 4, then such
defense is of no avail to him.

14. If the proprietor claiming prior use outside India has goodwill in India then he can rely
on the reputation, if his reputation is strong enough to negative that of the other
proprietor in India. The proprietor has to satisfy the Court about his trans-border
reputation and this can be done if and only if, he can claim an antecedent or concurrent
goodwill in the jurisdiction of India which will only be the case if he has customers
here in India who relates the product under the concerned trade mark as of
the concerned foreign entity.

15. Taking a departure from the general rule in context of Section 34 the High Court of
Delhi through Hon'ble Justice Sanjiv Khanna (presently Judge of Supreme Court) in
Lowenbrau AG and Others versus Jagpin Breweries Ltd. and Others 5

3 India/trademark/574886/salient-features-of-trademark-rules-2017
4 TRADE_MARKS_RULES_2017 English.pdf
5 157(2009)DLT791

14
 keeping in view the peculiar facts and circumstances of the case took into
consideration the prior use of the trade mark by the Defendant outside India. In that
case, both the companies i.e. Plaintiff and Defendant were foreign companies and both
of them were using the trade mark all over the world and wanted to expand in India
and in these circumstances the position as it exists abroad and usage abroad were
held to be important in terms of Section 34 of the Act.

16. Indian market is opening up and foreign or multinational brands have moved and/ or
are likely to move and similarly, Indian brands are likely to move out and expand into
markets abroad. National and manmade borders and boundaries are gradually getting
diluted and the entire world can now be seen as a common market. Therefore, in such
circumstances it may not be proper to ignore ground realities in all the cases by blindly
following the principles evolved by the Courts; the position in the home country and
abroad should be equally important. Trans-border reputation has been accepted and
recognized in India even when the products are not being marketed and sold in India.
Each case therefore may have to be decided on its own merits and factual background.
In the end there should be protection of trade mark and fraudulent
use must be prevented. Hence, justice should prevail.

15
 ISSUE-III: Whether The Trademark Adopted With Honest And Bonafide
Intention?

17. It is humbly submitted before this Hon’ble Court that the District Court on receiving
the evidence regarding ‘Honest and bonafide intention of Respondent in using the
trade mark’ has decided the case in the favour of respondent and the High Court
should appreciate the evidence through the eyes of the trial judge.

18. In Trademarks act 1999, the applicant is required to prove the actual usage of the mark
before the registry in order to gain the registration. Therefore, actual usage of mark not
only includes the physical presence of mark on goods in India but also proper
advertising and promotion of the mark. While applying for registration of the mark, it
does not only show the usage or prior usage of the mark but also reveals the
distinctiveness of the mark. The respondent before Trial Court has disposed all its
liability by providing enough material on record to justify it's claim that the respondent
was in serious business before the registration of the trademark and the mark was
found to be ' distinctive ' by the authorities .

19. The intent of the parties to the suit can be looked through the conduct of the parties .
The appellant themselves admitted that the respondent product were available on
different e- commerce platforms in India while the appellant claim of its brand being
recognised throughout out the length and breadth of the country is just a self - serving
statement which has no evidentiary value and the appellant failed to show any
material documents which may support there claim. Therefore the Trial Court is
justified in holding its finding . The evidence of intent is not the applicant’s subjective
state of mind. Rather, there must be a firm intention to use the mark in a commercial
sense, not just a hope of possible future use, and there must be objective evidence of
facts and actions that show this intent.

20. Under Article 19(1) (g) of the Indian Constitution, every person has the fundamental
right to engage in commerce, industry, and other activities, but this fundamental right
is subject to appropriate restrictions under various state and federal statutes. The

16
 respondent firm has obeyed all the law of the land and therefore must be allow to
enjoy all there fundamental right as enriched in the golden word reflecting the intent of
our forefathers.

21. A registered owner of trademark enjoys exclusive rights over his trademarks and such
rights can also be passed onto other through licensing and assignment and such
registration also affords protection against counterfeiting and infringing elements of
the whole entity. The aspect of usage is not only an essential part of the registration of
trademark but it also helps in obtaining the upper hand in any infringement case.

22. In Somashekar P. Patil v. D.V.G. Patil 8 The High Court stated that a licenced applicant
or a registered trademark proprietor cannot compete with a person’s bona fide use of
his or her own name or that of his or her place of operation, according to Section 35 of
the Trademark Act. The defendant has used the surname Patil as a bona fide user based
on his family identity, which is popular in the region where the family comes from,
according to the Court. It was decided that the fact that the appellant’s surname is
‘Patil’ is insufficient to enjoin the defendant from using the word ‘Patil’ in his
trademark. The Court ruled that it is a person’s natural right to use a surname that has
been in use for generations.

23. The respondent in present case has maintain written records of the efforts made to use
the mark with the goods or services in commerce. Some examples of evidence that
were included before Trial Court include: (1) promotional or marketing materials; (2)
screen shots of websites that may use the mark with the goods or services; (3)
packaging of the goods or proposed artwork for the packaging; (4) emails or other
documentation showing steps in furtherance of manufacturing the goods; (5)
documentation demonstrating steps towards acquiring governmental approval; (6)
proof of product or service research; (7) purchase orders or invoices for the goods or
services; (8) licensing agreements; (9) written correspondence with prospective
distributors or licensees; (10) business plans affiliated with the goods or services; (11)
permits or licenses required by a governmental authority; or (12) notes or emails in
connection with business meetings discussing the branding of the goods or services.

17
 The documentation had a reference about the trademark and they are not simply refer
to a general class of goods or services. Which when appreciated by the Trial Court and
was found appropriate in reaching the conclusion that the respondent has used the
trademark with a bonafide intention .

8
2018 SCC 637

ISSUE IV: Whether interim injunction can be granted by this Court?

24. It is humbly submitted before this Hon’ble Court that interim injunction can be granted
by High Court but in most exceptional cases and present suit is not of such exceptional
nature assuming the interim injunction application was filed before the trial court and
was rejected and the same order was not preferred by the appellant in the High Court
same cannot be asked at the stage of the appeal.

25. And It is humbly submitted before this Hon’ble Court that in order to ascertain that
whether an interim injunction is appropriate to certain sets of facts, the classical
trinity test is conducted by the courts assuring
(A) a prima facie case,
(B) balance of convenience and

(C) irreparable injury to the plaintiff.6

A. No prima facie case of infringement by HM

26. In Wander Ltd. v. Antox India Pvt. Ltd. 9 the Hon’ble Apex Court inter alia held that in
order to establish a prima facie case, it is incumbent upon the plaintiff to show that
“nature of activity & goods of plaintiff & defendant is similar and “use of
trademark/trade-name is likely to create confusion in public mind”. The nature of
activity of the petitioner and the HM, is completely different. While petitioner is
engaged in manufacture and sale of clothes. Moreover, there is no likelihood of
confusion amongst the consumers as the consumers can easily distinguish between
6 Laxmikant V. Patel v. Chetanbhat Shah and Another, 2001 Indlaw SC 19796.
9
Wander Ltd. v. Antox India Pvt. Ltd., 1990 (Supp) SCC 227.

18
the products of both HM and petitioner.

19
PRAYER

Wherefore in the light of the facts of the case, arguments advanced and authorities cited it
is humbly prayed that this Hon’ble High Court may be pleased to adjudge and declare
that-

1. Hiralal Megabrands Pvt Ltd is not liable for infringing and passing off of
trademark of Hummingwayy and Tumblrr Pvt Ltd.

2. The application for interim injunction cannot be filed at this stage of appeal.

3. The case was decided on merit by the trial court and the trial court appreciated the
evidence with the harmony of the law of land.

4. The respondent pray for the real cost which was incurred by the respondent for
researching, photocopy, lawyer’s charge and for the time spent for the fair
representation in the court.

The Court may also be pleased to pass any other order in the light of justice, equity and
good conscience.

All of which is respectfully submitted,

At: Counsel on behalf of the Respondent

Dated: X

Counsel for Respondent

20