Trade Marks Act, 1999

I have compared the trade marks as well as copyright and packaging filed by the respective parties in the present suit. It appears to me that the trademark as well as the packaging of the parties are almost identical with and deceptively similar with each other. From the perusal of documents placed by the parties, both the parties are registered owners of the trade marks as well as copyrights for their respective packaging. However, the registration of Trade Mark and Copyrights have been obtained by the parties on different dates. The plaintiff has challenged the alleged assignment of the copyright in favour of the defendant. Infact, both the parties are claiming earlier user of the trade mark and copyright. I feel that the crucial and essential question at this stage is to decide the interim application and to see whether the plaintiff has made full disclosure of the material facts while filing the present suit before this court.
In the present case, in Para 35 of the plaint, it is stated that the plaintiff gained knowledge about the defendants‟ activities in the month of August, 2008. There are admittedly various proceedings/actions pending prior to August, 2008 i.e. (i) rectification of the plaintiff‟s trade mark pending from the year 2005 before the Appellate Board, (ii) the details of disposal of the complaint filed by the plaintiff against the defendant on 10th March, 2005 before the Food and Drug Administration, Maharashtra, (iii) the legal notice issued by the plaintiff to the defendant regarding the misuse of the trade mark on 7th February, 2005 and (iv) the filing of the suit by the defendant before the High Court of Mumbai against one M/s. Saviour Biotech Pvt. Ltd who later turned out to be the licensee of the plaintiff. The explanation given by the plaintiff in this regard is not satisfactory to the effect that the plaintiff did not have any knowledge about the same and in the said suit the plaintiff is not a party. The plaintiff himself has filed a copy of the license agreement between the plaintiff and M/s. Saviour Biotech Pvt. Ltd. In the said agreement, the plaintiff has allowed M/s. Saviour Biotech Pvt. Ltd to use the trade mark "Vega Asia 50‟, "Vega Asia 100‟ and "Vega Super‟ and appointed him as a licensee.
The plaintiff has failed to assign any valid reason as to why the plaintiff has not disclosed the above mentioned facts in the plaint as well as in the application for injunction. The overall circumstances show that the plaintiff has not come before this court with clean hands.