Order 39 Rules 1 & 2
Trade mark SUNSTOP used by plaintiffs defendants claming to have coined this word after research.
Action for passing off .
Crucial facts noted by court for grant of injunction "it is clear that the defendant's product arrived in the Indian market, earlier than the plaintiffs'. But the first plaintiffs product was earlier than that of the defendant's product in the world market."
Further held repelling the arguments of plaintiff for grant of injunction on basis of transborder reputation court held. " Even if the first plaintiff is presumed to have achieved a tansborder reputation, for the purpose of argument, the balance of convenience does not appear to be in favour of the plaintiffs for the grant of an order of injunction. As stated earlier, the defendant applied for the registration of the Trade Mark in India in August 2005 and obtained a Drug license in November 2005 and launched its product in May 2007. The plaintiffs have not produced any proof to show that they had any intention to appear in the Indian market till October 2007. There is no document to show that the plaintiffs had an intention to arrive, even in 2005 or 2006, but that by force of circumstances, they could actually arrive only in October 2007." it is hard to conceive that the first plaintiff had established a transborder reputation that entitle the plaintiffs to an order of injunction. The plaintiffs have failed to produce any evidence to show that they had at least undertaken a blitzkrieg sales promotion campaign in India, at any time prior to the actual arrival of their product in November 2007 Application for injunction therefore dismissed.
Section 10 CPC
"It is seen that the bar under Section 10 of the Code is only to the Court proceeding with the trial of the suit and not with the hearing of any interlocutory applications. This is clear even from the plain language of Section 10. It merely says "no Court shall proceed with the trial of any suit".