TABLE OF CONTENTS

S. No. Particulars Page No.

List of References
1. 2

Statement of Jurisdiction
2. 4

Statement of Facts 5
3.

Statement of Issues
4. 7

Summary of Pleadings
5. 8

Arguments Advanced

9
i) Whether the respondent by adopting the impugned mark is
passing off his goods as that of the appellant?
6.

ii) Whether the defence of “adoption of Popular expression” is

18
available to the respondent?

iii) Whether there is acquiescence and waiver on the part of 19

appellant?
7. Prayer 20

1
 LIST OF REFERENCES

• Statutes
1. Trademarks Act, 1999
2. The Code of Civil Procedure, 1908

• Judicial Decisions

1. Alfred Dunhill Limited v. Kartar Singh Makkar, (1999) 19 PTC 294 (Del.)

2. Cadbury Uk Limited & Anr. v. Lotte India Corporation Ltd, (2014) 57 PTC 422 (Del.)

3. Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd, (2001) PTC 300 (SC)

4. Himalaya Drug Company v. S.B.L. Limited, (2013) 53 PTC 1 (Del.) (DB),

5. Harcourt v. White

6. H&M Hennes & Mauritz AB & Anr. v. HM Megabrands Pvt. Ltd. & Ors. (2018)

7. Kamat Trading Co. and Ors. v. Gillette U.K. Limited, (1988) 8 PTC 1 (BOM)

8. Khoday Distilleries Limited v. The scotch whisky association and others, (2008) 37 PTC
413 (SC)
9. Metric Resources Corporation v. Leasemetrix. Ltd. and Anr, (1979) FSR 571
10. M/s. Power Control Appliances and Others v. Sumeet Machines Pvt. Ltd., (1994) 2 SCC
448
11. Milmet Oftho Industries v. Allegran Inc, (2004) 28 PTC 585 (SC)
12. Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia and Others, (2004) 3 SCC 90
13. Neon Laboratories Limited v. Medical Technologies Limited, (2016) 2 SCC 672
14. N.R. Dongre And Ors v. Whirlpool Corporation and Anr, (1996) SCR (5) SUPP 369

2
15. Peps Industries Pvt. Ltd. v. Kurlon Limited, MANU/DE/0832/2020

16. Pfizer Products Inc. v. Rajesh Chopra & Ors., (2007) 35 PTC 59 (Del)

17. Ramdev Food Products Pvt. Ltd v. Arvindbhai Rambhai Patel & Ors, (2006) 8 SCC 726
18. S. Syed Mohideen v. P. Sulochana Bai, (2016) 2 SCC 683
19. Sony Kabushiki Kaisha v. Mahaluxmi Textile Mills, (2009) 41 PTC 184 (Cal.)

Books

1. Kerr, Treatise on the Law and Practice of Injunction, (6th Ed)

2. Law relating to IPR, VK Ahuja 3rd edition

• Internet Links
1. www.indiankanoon.com
2. www.lexorbis.com
3. www.lexology.com
4. www.wipo.int
5. www.ipindiaonline.gov.in

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 STATEMENT OF JURISDICTION

The Hon’ble High Court has jurisdiction to hear the appeal under Section 961 of The Civil
Procedure Code, 1908.

The present memorandum sets forth the facts, contentions and arguments in the present case.

1
Section 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.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not
exceed ten thousand rupees.

4
 STATEMENT OF FACTS

1. Hummingwayy and Tumblrr Pvt. Ltd. (Appellant) is a huge conglomerate based in

Norway, and is a proprietor of the trademark “HumTum” since 1966. The appellant has set up
a subsidiary in New Delhi for the purpose of carrying in business under the trademark
“HuMTuM”, on behalf of the parent company. The appellant has applied for the registration
in India, and the status of the application in May 2020 shows that it is sent for Vienna
Codification. The appellant has also secured its earliest registration for the above mark in the
year 1970 in United Kingdom.

2. The appellant is primarily engaged in designing, marketing and selling a wide variety of
premium segment fashionable clothing for women, men and children. It has more than 4500
outlets in more than 190 countries across the world, and even has major online presence on
various e-commerce sites such as Amazon and Myntra.

3. Hiralal Megabrand Pvt. Ltd (Respondent) is an Indian company based in Gujarat, but
having presence throughout India and the Middle-East. The respondent is a registered
proprietor of alleged trademark (Hum Tum) in India since 2014. The respondent is using the
trademark since 2011.

4. The India operations of the appellant are yet to kickstart, but it is maintained that the
news of its famous mark, “HuMTuM” is vastly accessed through various popular search
engines, such a Google, Yahoo and MSN. It is also claimed that the goods of the appellant
have gained extensive recognition through online channels.

5. Recently, the appellant came across the goods of the respondent, and it was found that
the alleged Trademark is being used by the respondent for same category of the goods.

6. The appellant filed a suit of passing off against the respondent, after the cease and

5
desist notice were not complied by the respondent. The district court ruled against the
appellant, and held that both the TM were quite different in appearance. It was also held
that both the parties were operating in two different territories. The lower court ruled in
favor of respondent, and held that the appellant was not entitled to any relief on the
ground of acquiescence and waiver.

7. Hence, this appeal has been filed by appellant challenging the order of the district Court.

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 SUMMARY OF ARGUMENTS

1. Whether the respondent by adopting the impugned mark are passing off his goods as
that of the appellant?
The tort of passing off has been committed by the respondent as all the three essential
requirements are sufficiently established popularly known as classical trinity, which are Good
faith, Misrepresentation causing deception and Damages. Thus, in all probability public
would have considered that respondent’s goods are that of Appellant.

2. Whether the defence of “adoption of Popular expression” is available to the

respondent?
This defence is not available to the respondent because by getting a generic name registered,
they are estopped from raising this plea.

3. Whether there is acquiescence and waiver on the part of appellant?

There is no acquiescence of use of trademark by the appellant as the twin preconditions of (1)
five-year use (2) and allowing the same for that period in spite of being aware of that use, are
not satisfied.

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 ARGUMENTS ADVANCED

 ISSUE 1: Whether the respondent by adopting the impugned mark is

passing off his goods as that of the appellant?

The counsel humbly submits that the tort of passing off has been committed by the
respondent by adoption of the impugned mark. This is the only legal and logical conclusion
which follows after the discussion of the following legal principles and the application of
same to the facts available on record before us.

Passing off is nowhere defined in The Trade Marks Act, 1999 but S.27 of the Act recognizes
the right off action of passing off for unregistered marks where no action for infringement is
allowed.

General principles of Passing off

In Kerly’s Law of Trade Marks and Trade Names (12th edition), under the heading “the action
for passing off”, it is stated thus: These are 3 in number:

First, he must establish a goodwill or reputation attached to the goods or services which he
supplies, in the mind of the public by association with the identifying get-up (whether it
consists simply of a brand name or a trade description, or the individual features of labelling
or packaging) under which his particular goods or services are offered to the public, such that
the get-up is recognized by the public as distinctive specifically of these plaintiff’s goods or
services.

Secondly, he must demonstrate a misrepresentation by the defendant to the public (whether

8
or not intentional) leading or likely to lead the public to believe that the goods or services
offered by him are the goods or services of the plaintiff.

Thirdly, he must demonstrate that he suffers, that he is likely to suffer damage by reason of
the erroneous belief engendered by the defendant’s misrepresentation that the source of the
defendant’s goods or service is the same as the source of those offered by the plaintiff.”

In addition to the above three “prior use” needs to be established first only then the court
would be permitted to go into the issue of passing off and consequential reliefs.

In Laxmikant V. Patel v Chetan Bhai Shah2, the Supreme Court has laid down the principles
in the following terms:

A person may sell his goods or deliver his services such as in case of a profession
under a trading name or style. With the lapse of time such business or services
associated with a person acquire a reputation or goodwill which becomes a property
which is protected by courts. A competitor initiating sale of goods or services in the
same name or by imitating that name results in injury to the business of one who has
the property in that name. The law does not permit anyone to carry on his business in
such a way as would persuade the customers or clients in believing that the goods or
services belonging to someone else are his or are associated therewith. It does not
matter whether the latter person does so fraudulently or otherwise.

The Counsel has established the requirements of “CLASSICAL TRINITY” and “PRIOR
USER” in the sequence as mentioned to prove that respondent is violating the principle of
law “no man is entitled to represent his goods as being the goods of another man”.

A. Prior user

The counsel humbly submits that appellant is the prior user of the trade mark ‘HuMTuM’.

2
AIR 2002 SC 275

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In the case of Maxheal Pharmaceuticals v. Shalina Laboratories Pvt. Ltd3 the court observed
that:

“If an action for passing off is by a prior user, the Court would be permitted to go into
the issues including the issue of validity of registration of the defendant’s trade mark
and even grant an order of injunction in favour of the person whose mark is not
registered and against a person whose mark is registered”.

The Counsel wants to bring the attention of The Honourable Court to the expression “If an
action for passing off is by a prior user” which implies in the context that no action of
passing off will lie against the respondent if appellant is not the prior user of the mark. Here,
the condition of prior user is satisfied as it is being used since 1966 and secured its earliest
registration for the mark in the year 1970 in the United Kingdom.

B. Good will in the mind of people

The counsel submits that the appellants business has requisite good will and distinctiveness.
What is goodwill?

We can do no better than cite the passage of LORD MACNAGHTEN in Commissioners of

Inland Revenue v Muller & Co.’s Margarine Ltd4:’

“It is a thing very easy to describe, very difficult to define. It is the benefit and
advantage of the good name, reputation, and connection of a business. It is the
attractive force which brings in custom. It is the one thing which distinguishes an old
established business from a new business at its first start.”

Goodwill need not be established in the mind of every member of the relevant public, but in a
significant section of public

Question of ownership of goodwill is one of fact and is to be established by evidence.

3
Appeal no 88/2005 in Notice of Motion no. 2638/2004 in suit no. 2663/2004
4
Commissioners of Inland Revenue v. Muller & Co.’s Margarine Ltd. (1901) A.C. 217 at 223-224

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 On how to establish goodwill Lord Oliver expressed in Reckitt & Colman Products
Ltd v Borden Inc5:

… the plaintiff must establish a goodwill or reputation attached to the goods or

services which he supplies in the mind of the public by association with the
identifying “get-up” (whether it consists simply of a brand name or a trade
description, or the individual features of labelling or packaging) under which his
particular goods or services are offered to the public, such that the get-up is
recognized by the public as distinctive specifically of the plaintiff’s goods or services.

The Counsel after application of the above-mentioned discussion to the facts conclude that
Good will is something which is very easy to describe and very hard to define. It doesn’t exist
independently of business and to describe the same we take help of business name, trade
mark and all other things which works as attractive force for the customers and help them to
differentiate between the old and new business. Appellant has been engaged in the clothing
industry under the trade mark ‘HuMTuM’ since 1966 and has more than 4500 outlets in more
than 190 countries. Such a large business wouldn’t have flourished without a loyal and large
customer base and the same attaching value to the trade mark and the quality of respective
goods traded under it. With the boost in e-commerce, products of the company are
available through Amazon/Myntra and other similar online shopping service providers and
are extensively bought and sold. This is substantiated from the news regarding the same
trademark which is readily available and frequently accessed through search engines such as
www.google.com,www.yahoo.com, www.msn.com etc. which says that products bearing
trademark ‘HuMTuM’ are extensively supplied in India through e commerce platforms.
Above mentioned facts clearly state and satisfies the requirement that the said mark has
become distinctive of appellant’s goods and has achieved extensive recognition among
relevant section of the public. Therefore, Good will and reputation of appellant’s business is
proved.

Trans-Border reputation

The counsel humbly submits that the Hon’ble Courts in India and worldwide has recognized
the concept of Trans border reputation which means that complainant need not to carry on
5
Reckitt & Colman Products Ltd v. Borden Inc, 1 W.L.R. 491, p 499 E

11
business in India and as a matter of law, it is not necessary to prove the actual sale, if by other
material presence of the plaintiffs in India and goodwill is demonstrated6.The Hon’ble Trial
Court below has failed to take account of this well recognized principle thus coming to the
erroneous conclusion that no tort of passing off has been committed on the ground that
appellants brand has no territorial presence in India.

In Whirlpool Corp v N.R. Dongre7, after referring to several cases, the judge observed as
under:

“These cases recognized that the reputation of a trader, trading or carrying on

the business in another country, can travel to a country where he had carried
no business. The traders’ trans-border reputation can be on the basis of
extensive advertisements and publicity. Such a trader could obtain injunction
in a court where he was not trading to protect his reputation. The knowledge
and the awareness of the goods of a foreign trader and its trademark can be
available at a place where goods are not being marketed, and consequently not
being used.”

The counsel after application of the above-mentioned discussion to the facts conclude that
appellant need not to have any business in Indian jurisdiction provided, he proves trans-
border reputation (significant section of public should know) here. A product and its trade
name transcend the physical boundaries of a geographical region and acquire a trans-border
or overseas or extra-territorial reputation not only through import of goods but also by its
advertisement, Indian tourists visiting foreign countries etc. Here the essence is “knowledge”
(as only its presence may cause confusion or deception) of the public regarding a business
(identified by its trade name, mark, get up, quality and class of goods) and which may come
by any source like imports, advertisement etc. Even the presence of goods in not mandatory.
News is one such medium which brings the awareness among the public. Here in India,
appellant’s mark is widely publicized through news portals like www.google.com,
www.yahoo.com, www.msn.com etc. which is readily available and frequently accessed by
the Indian Netizens. Moreover, extensive supply of the brand’s products imply extensive
demand in India together with the abovementioned reasons clearly establishes the awareness
or in other words trans- border reputation of the appellant’s trademark.
6
Aktiebolaget Volvo v. Volvo steels Ld, 1998 PTC 241 (Del)
7
Whirlpool Corp v. N.R. Dongre, 1995 PTC 21 (para 17)

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C. Misrepresentation by the respondent to cause deception

The counsel humbly submits that respondent by adopting the impugned mark has
intentionally made false representation to the public in order to create confusion in the minds
of public that his goods are the one coming from appellants.

In Spalding v. Gamage8, Lord Parker observed:

“The basis of a passing-off action being a false representation by the defendant, it

must be proved in each case as a fact that the false representation was made. It may,
of course, have been made in express words, but cases of express misrepresentation of
this sort are rare. The more common case is where the representation is implied in the
use or imitation of a mark, trade name or get-up with which the goods of another are
associated in the minds of the public, or of a particular class of the public. In such
cases the point to be decided is whether, having regard to all the circumstances of the
case, the use by the defendant in connection with the goods of the mark, name or get-
up in question impliedly represents such goods to be the goods of the plaintiff, or the
goods of the plaintiff of a particular class or quality, or, as it is sometimes put,
whether the defendant’s use of such mark, name or getup is calculated to deceive. It
would, however, be impossible to enumerate or classify all the possible ways in which
a man may make the false representation relied on.”

KERLY in Law of Trade Marks and Trade Names (12th Edition) deals with proof of
likelihood of deception as under:

The court must in the common case be satisfied that the defendant’s conduct is
calculated to pass off goods as those of the plaintiff, or at least, to produce such
confusion in the minds of probable customers or purchasers or other persons with
whom the plaintiff has business relations as would be likely to lead to the other goods
being bought and sold for his. This is the foundation of the action.

8
Per Lord Parker in Spalding v. Gamage, (1915) 32 RPC 273 p 284: (1915) 31 TKR 328

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Deceptive Similarity

In Cadila Healthcare Ltd v. Cadila Pharmaceutical Ltd9, the Supreme Court held that in an
action for passing off on the basis of an unregistered trade mark generally for deciding the
question of deceptive similarity the following factors are to be considered:

(a) The nature of the marks i.e. whether the marks are word marks or label marks or
composite marks, i.e., both words and label works;

(b) The degree of resemble-ness between the marks, phonetically similar and hence similar in
idea;

(c) The nature of the goods in respect of which they are used as trademarks;

(d) The similarity in the nature, character and performance of the goods of the rival traders;

(e) The class of purchasers who are likely to buy the goods bearing the marks they require; on
their education and intelligence and a degree of care they are likely to exercise in purchasing
and/or using the goods;

(f) The mode of purchasing the goods or placing orders for the goods; and

(g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity
between the competing marks.

Weightage to be given to each of the aforesaid factors depends upon facts of each case and
the same weightage cannot be given to each factor in every case.

Similarity of marks

In K.R. Chinna Krishna Chettiar v. Sri Ambal & Co10, the Supreme Court observed that “The
resemblance between the two marks must be considered with reference to the ear as well as
the eye.
9
(2001) 5 SCC 73
10
AIR 1970 SC 146

14
In Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratory11, the court observed that:

“In an action for infringement, the plaintiff must, no doubt, make out that the use of
the defendant’s mark is likely to deceive, but where the similarity between the
plaintiffs and defendant’s mark is so close either visually, phonetically or otherwise
and the court reaches the conclusion that there is an imitation, no further evidence is
required to establish that the plaintiff’s rights are violated”. This principle was also
recognized by The Supreme Court in Cadila Healthcare Ltd12 case.

In, Parle Products Pvt Ltd v JP & Co13 the apex court laid emphasis on the test of overall
similarity. The court observed as follows:

“It is therefore clear that in order to come to the conclusion whether one mark is
deceptively similar to another, the broad and essential features of the two are to be
considered. They should not be placed side by side to find out if there are any
differences in the design and if so, whether they are of such character as to prevent
one design from being mistaken for the other. It would be enough if the impugned
mark bears such an overall similarity to the registered mark as would be likely to
mislead a person usually dealing with one to accept the other if offered to him.”

It is clear that a trade mark may consist of a brand name, See Reckitt & Colman Products Ltd
v Borden Inc14,16.

Instances of marks being held similar by the courts:

“EYETAX” and “EYETOP” deceptively similar - Aravind Laboratories v Arihant

Cosmetics15

“Lakshmandhara” and “Amritdhara” deceptively similar – Amritdhara Pharmacy v Satyadeo

Gupta16
11
AIR 1965 SC 980
12
(2001) 5 SCC 73
13
AIR 1972 SC 1359
14
Reckitt & Colman Products Ltd v. Borden Inc, 1 W.L.R. 491, p 499 E.
15
2005 (30) PTC 175 (Mad).
16
AIR 1963 SC 449
15
“ANDAL” to be deceptively similar to “AMBAL” – K.R. Chinna Krishna Chettiar v Shri
Ambal and Co, Madras17

When the translated meaning of a word conveys the same idea, as in the following cases,
though the words are apparently different, they are held to be deceptively similar:

“Pizza Hut” and “Pizza ghar” held to be similar – Kiran Gupta v. Pizza Hut International
Lld18

Evidence of false representation, but not deception necessary

In Horlicks Ltd v. Bimal Khamrai19 while granting injunction against the defendants using the
trade mark “Horlicks” which was held to be deceptively similar to the plaintiff’s mark
“Horlicks”, the Delhi High Court held

“The law does not permit anyone to carry on his business in such a way as would
persuade the customers in believing that the goods belonging to someone else are his
or are associated therewith. It is wholly irrelevant whether the latter person does it
fraudulently or otherwise. According to Kerly’s Law of Trade Mark and Trade Names,
where there is probability of confusion in business, an injunction will be granted even
though the defendants adopted the name innocently.’

The counsel after application of the above-mentioned discussion to the facts conclude that the
respondent has intentionally made false representation to the public to pass of his goods as
those of appellant because

 The appellant’s mark is in use from year 1966 with 4500 outlets in more than 190
countries.
News and products both are available on online platforms in India. It is not possible
for someone dealing in with the same kind of products not to know about the good
will and reputation of the same and consequential benefits in clever adoption of
identical or similar mark.
 Respondent has used the mark for similar kind of products.
17
AIR 1970 SC 146
18
2004 (28) PTC 279
19
2003 (26) PTC 241 (DEL)

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  Respondent could have used their name like Hiralal Megabrands but why the trade
mark ‘Hum Tum’. Many other popular expression could have been used to show that
personal connect like.‘Aap Hum’ etc. It is no matter of co incidence that respondent
adopted well established trade mark in the guise of popular expression and that too in
the absence of any valid explanation.

Adoption of the said mark is creating confusion in the minds of public because of the
deceptive similarity of the two marks, which can be said based upon following observations:

 Nature of both the marks ‘HuMTuM’ and ‘Hum Tum’ is same i.e. both of them are
word marks, with a very slight difference that former has device of daisies in the
background.
 Both the marks are phonetically and visually similar and potent enough to create
confusion. These two are more or less exactly similar, the Courts in India have been
cautious enough to upheld marks not exactly similar but have the potential to create
confusion like “EYETEX” and “EYETOP”, “ Lakshmandhara” and “Amritdhara”, as
deceptively similar. In Durga Dutt sharma20, the court observed that where the
similarity between the plaintiffs and defendant’s mark is so close either visually,
phonetically or otherwise and the court reaches the conclusion that there is an
imitation, no further evidence is required to establish that the plaintiff’s rights are
violated”. Therefore, here nothing else needs to be proved.

 Even when the translated meaning of a word conveys the same idea though the words
are apparently different, they are held to be deceptively similar like “Pizza Hut” and
“Pizza Ghar”. Here the translated version of respondent’s mark in Hindi and Gujarati
language would be considered as deceptively similar

D. Goodwill of the business and it’s damage

The counsel humbly submits that damages if not accrued will accrue in all reasonable
possibility. Passing off by the defendant of his goods as the goods of the plaintiff injures the
right of property in the plaintiff, that right of property being his right to the goodwill of the
business. The law assumes, or presumes, that if the goodwill of a man’s business has been

20
AIR 1965 SC 1980

17
interfered with by the passing off of goods, damage results there from. He need not wait to
show that damage has resulted; he can bring his action as soon as he can prove the passing
off; because it is one of the class of cases in which the law presumes that
the plaintiff has suffered damage21.

On the question of likelihood of damage, judgment of per LADDIE J. in Kimberley-Clark Ltd

v Fort Sterling Ltd22 is relevant. There per LADDIE J., in the course of explaining a dictum of
Jacob J. in another cases stated that there are numerous cases which show that a claimant
does not have to prove that individual sales will be diverted to the defendant in order to make
out the third (damage) element of a passing-off action.

The counsel based on above discussion wants to conclude that as the false representation
made by the respondent would have in all reasonable possibility caused deception in the mind
of public so customers must have diverted or will divert in future, thus eventually resulting in
financial losses. Mere likelihood of damage is sufficient for this requirement

 ISSUE 2: Whether the defence of “adoption of Popular expression” is

available to the respondent?

The Counsel submits that the defence of adoption of generic or popular expression is not
available to the respondent because of being estopped after getting registered the same.

In Creative Travel Pvt. Ltd. v. Creative Tours and Travels (I) Pvt. Ltd. & Anr the court
observed “that a defendant who has himself obtained a registration of generic or popular
expression is estopped from taking said plea.”

 ISSUE 3: Whether there is acquiescence and waiver on the part of appellant?

The Counsel humbly submits that the appellant has not acquiesced in the use of subsequent
trade mark by the respondent thus waving off his right of passing off.

21
. Draper v. Trist (1936) 56 RPC 429, p 442
22
5 (1997) FSR 877

18
The proprietor of the earlier trade mark or other earlier right cannot contest the validity of
registration of a subsequent trade mark.

It has been held by the Supreme Court in Power Control Appliances v Sumeet Machines Pvt
Ltd23 that “acquiescence is sitting by, when another is invading the rights and spending money
on it. It is a course of conduct inconsistent with the claim for exclusive rights in the trade
mark, trade name etc. It implies positive acts, not merely silence or inaction such as is
involved in latches.”

It is for the defendant to prove acquiescence by the plaintiff24.

The counsel after application of the above-mentioned discussion to the facts conclude that
appellant got aware of the use of the trade mark by the respondent only at the time when
cease and desist notice was sent to them and when not complied with, suit was filed in the
District Court at earliest. Appellant never did anything inconsistent with their claim of
exclusive right in trade mark. In any situation it can’t be said that appellant was aware of use
of the later mark and that he has actively acquiesced in the use of the mark for a period of
five years.

PRAYER

Wherefore in light of the Issues Involved, Arguments raised, and Authorities cited,
Hummingwayy and Tumblrr Pvt Ltd, the Appellant, respectfully requests the Court to
adjudge and declare that:

1. Order interim injunction till the disposal of the suit to restrain the respondent from using
the mark ‘Hum tum’ or any other similar mark.

2. Hold the respondent liable for the tort of passing off.

3. Order perpetual injunction restraining the respondent from using the mark ‘Hum Tum’.

23
(1994) 2 SCC 448
24
KC Kailasam and Ramu Vedaraman: Law of Trade Marks , page 713, Lexis Nexis, 4th edition

19
All of which is respectfully affirmed and submitted.

COUNSEL FOR THE APPELLANT

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