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NON-REPORTABLE      

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.7191 OF 2014  

(Arising out of SLP(C)No.9942 of 2013) Precious Jewels & Anr. … Appellants  

      Versus Varun Gems     ..Respondent

J U D G M E N T

ANIL R. DAVE, J.

1. Leave granted.

2. Being aggrieved by an interim order passed  

in  a  civil  suit,  the  appellants-original  

defendants have approached this Court by way of  

this appeal.

3. The matter has arisen under the provisions  

of the Trade Marks Act, 1999.  It is an admitted

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fact that the partners of the plaintiff as well  

as the defendant firms belong to the same family  

sharing a common surname – “Rakyan”.   

4. The defendants are dealing in jewellery,  

which is admittedly a family business of the  

plaintiff  as  well  as  the  defendants.  The  

defendants are doing business in the name and  

style of “NEENA AND RAVI RAKYAN”, whereas the  

plaintiff firm is also dealing in jewellary and  

doing  the  business  in  the  name  and  style  of  

“Rakyan's  Fine  Jewellery”.   Both  are  doing  

business in Delhi and their shops are abutting  

each other.   

5. The plaintiff claiming trade mark of their  

surname  “RAKYAN”  filed  a  suit  praying,  inter  

alia, that  the  defendants  be  restrained  from  

doing their business in the name and style of  

“NEENA AND RAVI RAKYAN”.  In the said suit, an  

application  seeking  interim  relief  was  filed  

whereby it was prayed that the defendants be

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restrained from doing the business in the name  

and style of “NEENA AND RAVI RAKYAN”.  By virtue  

of the impugned order, the defendants i.e. the  

present  appellants  have  been  restrained  from  

doing their business in the concerned name and  

therefore, the appellants have approached this  

Court.

6. It  is  an  admitted  fact,  as  stated  

hereinabove, that the partners of the plaintiff  

as well as defendant firm being to one family  

and they are in the business of jewellery and  

they have got a large family and there are not  

less than 15 business units belonging to the  

family members, which are dealing in jewellery  

in different names and styles.

7. It  had  been  submitted  by  the  learned  

counsel appearing for the appellants that they  

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

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the said firm are Smt. Neena Rakyan and Shri  

Ravi Rakyan and they cannot be restrained from  

doing their business in their own name.  The  

learned  counsel  had  referred  to  some  of  the  

judgments and had mainly relied upon Section 35  

of  the  Trade  Marks  Act,  1999  (hereinafter  

referred to as “the Act”).  It had been further  

submitted that the interim order whereby they  

have been restrained from doing their business  

is absolutely unjust and improper in view of  

provisions of Section 35 of the Act, which read  

as under :-

“35.  Saving for use of name, address or  description  of  goods  or  services.  -  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.”

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8. On  the  other  hand,  the  learned  counsel  

appearing  for  the  respondent-plaintiff  had  

vehemently submitted that the defendants had no  

right to do their business in the shop which is  

next to the shop of the plaintiff and they have  

no right to use the word “RAKYAN” in the name of  

their shop.  The learned counsel appearing for  

the  respondent/plaintiff  had  also  relied  upon  

some of the judgments to substantiate his case  

and  to  submit  that  the  appeal  deserved  

dismissal.

9. As  the  suit  is  pending  for  its  final  

disposal and we are merely concerned with an  

interlocutory  order,  without  expressing  any  

opinion,  we  are  of  the  view  that  the  

interlocutory order passed by the Court below is  

not just and proper in view of the provisions of  

Section 35 of the Act.   

10. As stated hereinabove, Section 35 of the  

Act permits anyone to do his business in his own

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name in a  bona fide  manner.  In the instant  

case, it is not in dispute that the defendants  

are doing their business in their own name and  

their bona fides have not been disputed.  It is  

also  not  in  dispute  that  the  plaintiff  and  

defendants  are  related  to  each  other  and  

practically all the family members are in the  

business of jewellery.

11. 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.

12. In our opinion, looking at the provisions  

of Section 35 of the Act, there is no  prima  

facie case  in  favour  of  the  plaintiff  and  

therefore, the defendants could not have been  

restrained  from  doing  their  busines.   We,  

therefore,  quash  and  set  aside  the  impugned  

order granting interim relief in favour of the

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plaintiff  and  the  appeal  is  allowed  with  no  

order as to costs.

13. We clarify that we have only expressed our  

prima facie  view and the observations, if any,  

made in this judgment shall not be treated as  

final and the trial Court shall decide the case  

on  the  basis  of  the  evidence  which  might  be  

adduced before it and on the facts of the case.  

................J. (ANIL R. DAVE)

................J.      (VIKRAMAJIT SEN)

NEW DELHI AUGUST 4, 2014.