Order 39 Rules 1 and 2
Ad interim injunction restraining the defendant from manufacturing, selling, marketing, advertising or in any manner using the trademarks 'SUPER BRIGHT', SUPER BRIGHT EL', 'SUPER BRIGHT EL-C, 'SUPER BRIGHT EL-81', 'SUPER BRIGHT HD ULTRA' and 'SUPER BRIGHT Bleach' or any other trademark which is deceptively similar or confusingly similar to that of the plaintiff.
Held that in action of passing off it has to be proved that the person to whom the goods were supplied would have been deceived into believing that the goods were that of the plaintiff when in fact they were not. Defendant supplying the rogue product , applying the plaintiffs trade mark 'SUPER BRIGHT. Fit case for likely loss of goodwill and reputation by the plaintiff if the injunction was not granted.
Plaintiffs were able to show prima facie that they are the prior users of the mark and that they have made out a prima facie case for grant of an ad interim injunction in their favour.
Injunction granted.
Showing posts with label Civil Procedure Code. Show all posts
Showing posts with label Civil Procedure Code. Show all posts
Sunday, June 13, 2010
Civil Procedure Code, 1908
Section 9
Suit for banning/issuing an injunction on publication of a book, which is in existence and being published and read for last 135 years, on the ground that its publication was likely to disturb public tranquility and public order.
HELD Plaintiffs, after 135 years wanted to use it as a tool to cause damage to the society. Such kind of suits are not of civil nature and are purely of religious nature .
In such a situation the Court could not have entertained the suit for injunction dismissed.
Suit for banning/issuing an injunction on publication of a book, which is in existence and being published and read for last 135 years, on the ground that its publication was likely to disturb public tranquility and public order.
HELD Plaintiffs, after 135 years wanted to use it as a tool to cause damage to the society. Such kind of suits are not of civil nature and are purely of religious nature .
In such a situation the Court could not have entertained the suit for injunction dismissed.
Civil Procedure Code, 1908
Order 39 Rules 1 & 2
Plaintiffs owners of RANGOLI which is a registered trademark regarding Essence stick .
Defendant also using word RANGILI for sale of Essence stick therefore using phonetically and visually similar mark as that of registered trademark of the plaintiffs . Fit case for Interim injunction .
HELD
Thus, phonetical similarity was alleged and it has been decided by the trial court and therefore, the contention raised by the original defendants that phonetical similarity cannot be argued by the present appellants before this Court is not accepted. On the contrary, injunction ought to have been granted, looking to the mark RANGILI, which is structurally and phonetically similar to registered Trademrk of plaintiffs viz. 'RANGOLI'. Mark 'RANGILI' is deceptively similar to registered Trademark RANGOLI. A man of imperfect recollection and of average inteli will be deceived by mark used by the defendants. [Para 4]
As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, this Appeal from Order is allowed. The order dated 5th November, 2007 beh Notice of Motion exhs. 6 and 7 in Civil Suit No. 2175 of 2007 passed by the learnt Judge, City Civil Court, Court No. 6, Ahmedabad is hereby quashed and set aside. The respondents (original defendants), their servants, agents, dealers, distributor; stockists, publishers and printers are hereby restrained from using any label, materials, advertisement materials, the mark RANGILI, on and after a period of eight weeks from today. Appeal From Order is allowed. Civil Application No. of 2007 stands disposed of. [Para 5]
Plaintiffs owners of RANGOLI which is a registered trademark regarding Essence stick .
Defendant also using word RANGILI for sale of Essence stick therefore using phonetically and visually similar mark as that of registered trademark of the plaintiffs . Fit case for Interim injunction .
HELD
Thus, phonetical similarity was alleged and it has been decided by the trial court and therefore, the contention raised by the original defendants that phonetical similarity cannot be argued by the present appellants before this Court is not accepted. On the contrary, injunction ought to have been granted, looking to the mark RANGILI, which is structurally and phonetically similar to registered Trademrk of plaintiffs viz. 'RANGOLI'. Mark 'RANGILI' is deceptively similar to registered Trademark RANGOLI. A man of imperfect recollection and of average inteli will be deceived by mark used by the defendants. [Para 4]
As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, this Appeal from Order is allowed. The order dated 5th November, 2007 beh Notice of Motion exhs. 6 and 7 in Civil Suit No. 2175 of 2007 passed by the learnt Judge, City Civil Court, Court No. 6, Ahmedabad is hereby quashed and set aside. The respondents (original defendants), their servants, agents, dealers, distributor; stockists, publishers and printers are hereby restrained from using any label, materials, advertisement materials, the mark RANGILI, on and after a period of eight weeks from today. Appeal From Order is allowed. Civil Application No. of 2007 stands disposed of. [Para 5]
Friday, June 11, 2010
Civil Procedure Code, 1908
Order 11 Rules 1 and 12
HELD "The entire case of the revision petitioner rests on the basis of their enquiry conducted in the matter which resulted in getting the alleged information about the imitations of their branded pen both in design and in shape. Therefore before granting permission to serve the interrogatories, the trial Court was expected to look into the questions for the purpose of arriving at a conclusion as to whether the revision petitioner should be compelled to disclose their nature of evidence in the suit. It is trite that a party is not entitled to serve interrogatories with a view to collect materials which would constitute the evidence of the opposite party. This provision is not a short cut for a party to win the case. The order of the trial Judge does not disclose that the basic requirements for permitting' service of interrogatories were considered in the matter.
The suit is also ripe for trial and in such circumstances, whether it was necessary to deliver the interrogatories with the questions as contained in the application in IA. No. 25 of 2002 was also not considered by the learned trial Judge. Therefore I am of the view that the entire issue need to be considered by the learned trial Judge afresh."
Impugned order set aside.
HELD "The entire case of the revision petitioner rests on the basis of their enquiry conducted in the matter which resulted in getting the alleged information about the imitations of their branded pen both in design and in shape. Therefore before granting permission to serve the interrogatories, the trial Court was expected to look into the questions for the purpose of arriving at a conclusion as to whether the revision petitioner should be compelled to disclose their nature of evidence in the suit. It is trite that a party is not entitled to serve interrogatories with a view to collect materials which would constitute the evidence of the opposite party. This provision is not a short cut for a party to win the case. The order of the trial Judge does not disclose that the basic requirements for permitting' service of interrogatories were considered in the matter.
The suit is also ripe for trial and in such circumstances, whether it was necessary to deliver the interrogatories with the questions as contained in the application in IA. No. 25 of 2002 was also not considered by the learned trial Judge. Therefore I am of the view that the entire issue need to be considered by the learned trial Judge afresh."
Impugned order set aside.
Civil Procedure Code, 1908
Order 7 Rule 11
Return of the plaint sought on the grounds that constituted attorney is an advocate in the same case.
HELD " I am of the view that the issue of dual capacity as raised by the applicants is mere a technical irregularity, which does not affect the root cause of the issue as raised in the original suit, it would not cause any prejudice to the non-applicants if allowed to get cured. There is no legal bar to an advocate being appointed as a constituted attorney by a party for the purpose of a case. Moreover there is no suggestion of there being any mala fide."
Application dismissed.
Return of the plaint sought on the grounds that constituted attorney is an advocate in the same case.
HELD " I am of the view that the issue of dual capacity as raised by the applicants is mere a technical irregularity, which does not affect the root cause of the issue as raised in the original suit, it would not cause any prejudice to the non-applicants if allowed to get cured. There is no legal bar to an advocate being appointed as a constituted attorney by a party for the purpose of a case. Moreover there is no suggestion of there being any mala fide."
Application dismissed.
Civil Procedure Code, 1908
Order 39 Rule 3
HELD" that for passing an ex parte order the Court is required to record reasons that the object of injunction would be defeated by delay. No such reason and indeed no reason whatsoever has been recorded in the impugned order. Furthermore, we have noticed the fact that on merits also the appellant had issued a legal notice to the respondents in the year 2003, the reply to which did not state that the application for registration, filed by the respondent was in the year 1996, though it was stated in the said reply that the i user of the respondent/plaintiff was from the year 1992. In these circumstances, the veracity of the averment regarding the application of 1996 filed by the respondent/plaintiff was required to be looked into seriously before any order was passed granting an injunction which stops the business of the appellant in the disputed product."
Order of the learned Single Judge, set aside.
HELD" that for passing an ex parte order the Court is required to record reasons that the object of injunction would be defeated by delay. No such reason and indeed no reason whatsoever has been recorded in the impugned order. Furthermore, we have noticed the fact that on merits also the appellant had issued a legal notice to the respondents in the year 2003, the reply to which did not state that the application for registration, filed by the respondent was in the year 1996, though it was stated in the said reply that the i user of the respondent/plaintiff was from the year 1992. In these circumstances, the veracity of the averment regarding the application of 1996 filed by the respondent/plaintiff was required to be looked into seriously before any order was passed granting an injunction which stops the business of the appellant in the disputed product."
Order of the learned Single Judge, set aside.
Civil Procedure Code, 1908
Order 39 Rules 1 and 2
Plaintiff obtaining ex parte injunction by completely suppressing in the plaint that vide written agreements dated 19th August, 2002 and 20th September, 2002 (filed by the defendant No. 2 along with written statement), the plaintiff had agreed to be the authorised stockist of the defendants and the said agreements were executed on the letter-head of the defendants, which clearly mentioned the name/mark 'PRINCE Auto Industries'.
Howevre plaintiff using the distinctive trademark 'PRINCE' in respect of accessories for use in cars as registered owner. Defendant had been dealing in auto accessories and had made a mark in its field of activity well before the plaintiff got registered the trademark 'PRINCE'
Conduct of the plaintiff unbecoming of the confidence impliedly imposed by the Court in a plaintioff to state material facts.
HELD Sale figures of the defendant No.2 were nearly four times the sale figures of the plaintiff Interim orders, vacated alongwith other directions.
Plaintiff obtaining ex parte injunction by completely suppressing in the plaint that vide written agreements dated 19th August, 2002 and 20th September, 2002 (filed by the defendant No. 2 along with written statement), the plaintiff had agreed to be the authorised stockist of the defendants and the said agreements were executed on the letter-head of the defendants, which clearly mentioned the name/mark 'PRINCE Auto Industries'.
Howevre plaintiff using the distinctive trademark 'PRINCE' in respect of accessories for use in cars as registered owner. Defendant had been dealing in auto accessories and had made a mark in its field of activity well before the plaintiff got registered the trademark 'PRINCE'
Conduct of the plaintiff unbecoming of the confidence impliedly imposed by the Court in a plaintioff to state material facts.
HELD Sale figures of the defendant No.2 were nearly four times the sale figures of the plaintiff Interim orders, vacated alongwith other directions.
Sunday, May 30, 2010
Civil Procedure Code, 1908
Order 39 Rules 1 & 2
If we go by the family settlement/arrangement, there is a primafacie, case in favour of the appellants who are plaintiffs in two civil suits, as, after 31.3.96, the respondents are not entitled to use the trade mark "Kangaro". If we go only by the Retirement Deeds, excluding the family settlement/arrangement from consideration, the respondents who are plaintiffs in one suit have a prima facie case to exclusive use of the trademark "Kangaro". Keeping in view the fact that (i) trade mark "Kangaro" was being used more or less as a family trademark till 31.3.1995; (ii) both the groups are using this trademark since prior to 7.1.1997, when status quo order was passed; (iii) No serious effort was made by the respondents for vacation of status quo order dated 7.1.1997, even after dismissal of SLP of the appellants in the proceedings arising out of CO. No. 4/97; (iv) both the groups have substantial turnover from use of the trademark "Kangaro", though turnover of the respondents is stated to be much brighter than that of the appellants, (v) In some countries the appellants are using this trade mark while in some other countries it is being used by the respondents; (vi) the court can take a final view on the nature, admissibility and applicability of the documents termed as family settlement/arrangement by the appellants and proposal/counter proposal, by the respondents, only after recording evidence, to be adduced during trial, we direct as under:
(1) During pendency of these suits, the parties shall maintain the status quo, as it existed on 7.1.1997, as regards use of the trademark "Kangaro", but, in order to ensure that there is no confusion as regards the manufacturer of the product they shall also prominently display the name of the manufacturer on the box in which the product reaches the ultimate customer.
(2) Both the groups shall maintain and file, in court, quarterly un-audited accounts of the turnover, gross profit and not profit from manufacture and sale of the products sold by them under the trademark "Kangaro", so that the group which ultimately succeeds can recover suitable damages from the other group. The accounts should be filed within 90 days of the close of each quarter. They shall also file annual audited accounts, containing the same information, by 30th June each year. The Appeals stand disposed of. The observations made in this order shall not affect or influence the decision of the suits on merit.
If we go by the family settlement/arrangement, there is a primafacie, case in favour of the appellants who are plaintiffs in two civil suits, as, after 31.3.96, the respondents are not entitled to use the trade mark "Kangaro". If we go only by the Retirement Deeds, excluding the family settlement/arrangement from consideration, the respondents who are plaintiffs in one suit have a prima facie case to exclusive use of the trademark "Kangaro". Keeping in view the fact that (i) trade mark "Kangaro" was being used more or less as a family trademark till 31.3.1995; (ii) both the groups are using this trademark since prior to 7.1.1997, when status quo order was passed; (iii) No serious effort was made by the respondents for vacation of status quo order dated 7.1.1997, even after dismissal of SLP of the appellants in the proceedings arising out of CO. No. 4/97; (iv) both the groups have substantial turnover from use of the trademark "Kangaro", though turnover of the respondents is stated to be much brighter than that of the appellants, (v) In some countries the appellants are using this trade mark while in some other countries it is being used by the respondents; (vi) the court can take a final view on the nature, admissibility and applicability of the documents termed as family settlement/arrangement by the appellants and proposal/counter proposal, by the respondents, only after recording evidence, to be adduced during trial, we direct as under:
(1) During pendency of these suits, the parties shall maintain the status quo, as it existed on 7.1.1997, as regards use of the trademark "Kangaro", but, in order to ensure that there is no confusion as regards the manufacturer of the product they shall also prominently display the name of the manufacturer on the box in which the product reaches the ultimate customer.
(2) Both the groups shall maintain and file, in court, quarterly un-audited accounts of the turnover, gross profit and not profit from manufacture and sale of the products sold by them under the trademark "Kangaro", so that the group which ultimately succeeds can recover suitable damages from the other group. The accounts should be filed within 90 days of the close of each quarter. They shall also file annual audited accounts, containing the same information, by 30th June each year. The Appeals stand disposed of. The observations made in this order shall not affect or influence the decision of the suits on merit.
Civil Procedure Code, 1908
Order 39 Rules 1 & 2
Respondent/Plaintiff doing the business under the name of KHAZANA for the past 20 years whereas ppellant carrying on the business under the name of Lakshmi Gold KHAZAANA only from September, 2007 Long usage of the name KHAZAN by respondents. Therefore appellant/ defendant deceptively passing off goods namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of plaintiffs/respondents registered trade mark . Respondent already registered owners of mark rights by long usage of the word KHAZANA .
HELD Totality of the evidence placed by the respondent/plaintiff before the Court prima facie makes out a case, supporting the plea of the plaintiff that the appellant/defendant is deceptively passing off goods-namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of laintiffs/respondents registered trade mark, which actions or state of affairs if allowed to continue at this stage, will tantamount to an action for infringement of Trade Mark, especially in the circumstance, when not only the respondent has already acquired the proprietary rights by long usage of the word KHAZANA, but also when the balance of convenience is in favour of the respondent in obtaining injunction pending suit. Under such circumstances, the appeals have got to be dismissed since they do not carry any merit. [Paras 11 & 12;
Respondent/Plaintiff doing the business under the name of KHAZANA for the past 20 years whereas ppellant carrying on the business under the name of Lakshmi Gold KHAZAANA only from September, 2007 Long usage of the name KHAZAN by respondents. Therefore appellant/ defendant deceptively passing off goods namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of plaintiffs/respondents registered trade mark . Respondent already registered owners of mark rights by long usage of the word KHAZANA .
HELD Totality of the evidence placed by the respondent/plaintiff before the Court prima facie makes out a case, supporting the plea of the plaintiff that the appellant/defendant is deceptively passing off goods-namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of laintiffs/respondents registered trade mark, which actions or state of affairs if allowed to continue at this stage, will tantamount to an action for infringement of Trade Mark, especially in the circumstance, when not only the respondent has already acquired the proprietary rights by long usage of the word KHAZANA, but also when the balance of convenience is in favour of the respondent in obtaining injunction pending suit. Under such circumstances, the appeals have got to be dismissed since they do not carry any merit. [Paras 11 & 12;
Civil Procedure Code, 1908
Order 39 Rules 1 & 2
Respondent/Plaintiff doing the business under the name of KHAZANA for the past 20 years whereas ppellant carrying on the business under the name of Lakshmi Gold KHAZAANA only from September, 2007 Long usage of the name KHAZAN by respondents. Therefore appellant/ defendant deceptively passing off goods namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of plaintiffs/respondents registered trade mark . Respondent already registered owners of mark rights by long usage of the word KHAZANA .
HELD Totality of the evidence placed by the respondent/plaintiff before the Court prima facie makes out a case, supporting the plea of the plaintiff that the appellant/defendant is deceptively passing off goods-namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of laintiffs/respondents registered trade mark, which actions or state of affairs if allowed to continue at this stage, will tantamount to an action for infringement of Trade Mark, especially in the circumstance, when not only the respondent has already acquired the proprietary rights by long usage of the word KHAZANA, but also when the balance of convenience is in favour of the respondent in obtaining injunction pending suit. Under such circumstances, the appeals have got to be dismissed since they do not carry any merit.
[Paras 11 & 12;
Respondent/Plaintiff doing the business under the name of KHAZANA for the past 20 years whereas ppellant carrying on the business under the name of Lakshmi Gold KHAZAANA only from September, 2007 Long usage of the name KHAZAN by respondents. Therefore appellant/ defendant deceptively passing off goods namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of plaintiffs/respondents registered trade mark . Respondent already registered owners of mark rights by long usage of the word KHAZANA .
HELD Totality of the evidence placed by the respondent/plaintiff before the Court prima facie makes out a case, supporting the plea of the plaintiff that the appellant/defendant is deceptively passing off goods-namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of laintiffs/respondents registered trade mark, which actions or state of affairs if allowed to continue at this stage, will tantamount to an action for infringement of Trade Mark, especially in the circumstance, when not only the respondent has already acquired the proprietary rights by long usage of the word KHAZANA, but also when the balance of convenience is in favour of the respondent in obtaining injunction pending suit. Under such circumstances, the appeals have got to be dismissed since they do not carry any merit.
[Paras 11 & 12;
Civil Procedure Code, 1908
Order 39 Rules 1 & 2
Respondent/Plaintiff doing the business under the name of KHAZANA for the past 20 years whereas ppellant carrying on the business under the name of Lakshmi Gold KHAZAANA only from September, 2007 Long usage of the name KHAZAN by respondents. Therefore appellant/ defendant deceptively passing off goods namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of plaintiffs/respondents registered trade mark . Respondent already registered owners of mark rights by long usage of the word KHAZANA .
HELD Totality of the evidence placed by the respondent/plaintiff before the Court prima facie makes out a case, supporting the plea of the plaintiff that the appellant/defendant is deceptively passing off goods-namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of laintiffs/respondents registered trade mark, which actions or state of affairs if allowed to continue at this stage, will tantamount to an action for infringement of Trade Mark, especially in the circumstance, when not only the respondent has already acquired the proprietary rights by long usage of the word KHAZANA, but also when the balance of convenience is in favour of the respondent in obtaining injunction pending suit. Under such circumstances, the appeals have got to be dismissed since they do not carry any merit.
[Paras 11 & 12;
Respondent/Plaintiff doing the business under the name of KHAZANA for the past 20 years whereas ppellant carrying on the business under the name of Lakshmi Gold KHAZAANA only from September, 2007 Long usage of the name KHAZAN by respondents. Therefore appellant/ defendant deceptively passing off goods namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of plaintiffs/respondents registered trade mark . Respondent already registered owners of mark rights by long usage of the word KHAZANA .
HELD Totality of the evidence placed by the respondent/plaintiff before the Court prima facie makes out a case, supporting the plea of the plaintiff that the appellant/defendant is deceptively passing off goods-namely jewelleries or attempting or likely to attempt to pass off such goods as similar to that of laintiffs/respondents registered trade mark, which actions or state of affairs if allowed to continue at this stage, will tantamount to an action for infringement of Trade Mark, especially in the circumstance, when not only the respondent has already acquired the proprietary rights by long usage of the word KHAZANA, but also when the balance of convenience is in favour of the respondent in obtaining injunction pending suit. Under such circumstances, the appeals have got to be dismissed since they do not carry any merit.
[Paras 11 & 12;
Saturday, May 29, 2010
Civil Procedure Code, 1908
Order 17 Rule 1(2) — When the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for exceptional reasons to be recorded by it the adjournment of the hearing beyond the following day is necessary — Instead of deciding the case at the interlocutory stage, the suit itself should be disposed of finally at a very early date.
Infringement of patents — Interim order — Suit pending for long time — Suits relating to the matters of patents, trademarks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction — Matters relating to trademarks, copyrights and patents should be finally decided very expeditiously by the Trial Court instead of merely granting or refusing to grant injunction
Respondent shall be entitled to sell its product but it shall maintain an accurate records/accounts of its all India and export sales — No adjournment whatsoever ordinarily will be granted and the suit shall be finally disposed of on or before 30th November, 2009.
Infringement of patents — Interim order — Suit pending for long time — Suits relating to the matters of patents, trademarks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction — Matters relating to trademarks, copyrights and patents should be finally decided very expeditiously by the Trial Court instead of merely granting or refusing to grant injunction
Respondent shall be entitled to sell its product but it shall maintain an accurate records/accounts of its all India and export sales — No adjournment whatsoever ordinarily will be granted and the suit shall be finally disposed of on or before 30th November, 2009.
Civil Procedure Code, 1908
Sections 16 to 20
Territorial Jurisdiction ingredients to exercise territorial jurisdiction indicated.
HELD The mere fact that a website is accessible in a particular place may not itself be sufficient for the courts of that place to exercise personal jurisdiction over the owners of the website. However, where the website is not merely passive but is interactive permitting the users not only to have access to the contents thereof but, also subscribe to the services provided by the owners / operators, may in certain circumstances create jurisdiction in the court of that place where the website is accessible. Where the website is interactive, the level of interactivity becomes relevant and in cases of limited interactivity such interactivity may not be sufficient for a court to exercise jurisdiction. [Para 11]
In the present case, the website www.expresspharmapulse.com containing the information of the defendant company and also information regarding the drug Tadarich is passive in nature. It has no section for subscription to its services and the options which could be exercised by subscriber. This information in no manner can be said to be inviting any subscription from anyone including the consumers. [Para 15]
It is pertinent to mention here that the defendant company has dis-continued with its product "Tadarich" and instead they are manufacturing drug Tadalafil in the brand name of Tadasip which does not include the alleged trade mark "CIALIS" owned by the plaintiff. [Para 16]
As discussed above, the website proved on the record does not indicate that the defendant invited any subscription from anyone including Delhi for supply of their product. [Para 18]
Therefore, it is concluded that the website containing the information of the defendant company and its product "Tadarich" in no manner can be said to be interactive permitting the users, not only access to the contents thereof but, also subscribe to the services provided by the defendant. Even if it is taken that a limited interactivity is there in the information, this by itself is not sufficient for this court to exercise its jurisdiction. [Para 19]
Territorial Jurisdiction ingredients to exercise territorial jurisdiction indicated.
HELD The mere fact that a website is accessible in a particular place may not itself be sufficient for the courts of that place to exercise personal jurisdiction over the owners of the website. However, where the website is not merely passive but is interactive permitting the users not only to have access to the contents thereof but, also subscribe to the services provided by the owners / operators, may in certain circumstances create jurisdiction in the court of that place where the website is accessible. Where the website is interactive, the level of interactivity becomes relevant and in cases of limited interactivity such interactivity may not be sufficient for a court to exercise jurisdiction. [Para 11]
In the present case, the website www.expresspharmapulse.com containing the information of the defendant company and also information regarding the drug Tadarich is passive in nature. It has no section for subscription to its services and the options which could be exercised by subscriber. This information in no manner can be said to be inviting any subscription from anyone including the consumers. [Para 15]
It is pertinent to mention here that the defendant company has dis-continued with its product "Tadarich" and instead they are manufacturing drug Tadalafil in the brand name of Tadasip which does not include the alleged trade mark "CIALIS" owned by the plaintiff. [Para 16]
As discussed above, the website proved on the record does not indicate that the defendant invited any subscription from anyone including Delhi for supply of their product. [Para 18]
Therefore, it is concluded that the website containing the information of the defendant company and its product "Tadarich" in no manner can be said to be interactive permitting the users, not only access to the contents thereof but, also subscribe to the services provided by the defendant. Even if it is taken that a limited interactivity is there in the information, this by itself is not sufficient for this court to exercise its jurisdiction. [Para 19]
Civil Procedure Code, 1908
Order 39 Rules 1 & 2
Appellants had unsuccessfully approached the High Court and Honble single judge dismissed application of plaintiffs for interim injunction for restrainig the defendants from use of trade mark SUNSTOP as it had transborder reputation.. Reported as 2009 (41) PTC 234(Mad.)
HELD By DB "multinational corporations, which have no intention of coming to India or introducing their product in India should not be allowed to throttle an Indian company by not permitting it to sell a product in India, if the Indian company has genuinely adopted the mark and developed the product and is first in the market. Thus the ultimate test should be, who is first in the market. In this case respondent passes the test.
Appellate court would not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material.
Appeal dismissed.
Appellants had unsuccessfully approached the High Court and Honble single judge dismissed application of plaintiffs for interim injunction for restrainig the defendants from use of trade mark SUNSTOP as it had transborder reputation.. Reported as 2009 (41) PTC 234(Mad.)
HELD By DB "multinational corporations, which have no intention of coming to India or introducing their product in India should not be allowed to throttle an Indian company by not permitting it to sell a product in India, if the Indian company has genuinely adopted the mark and developed the product and is first in the market. Thus the ultimate test should be, who is first in the market. In this case respondent passes the test.
Appellate court would not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material.
Appeal dismissed.
Civil Procedure Code, 1908
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".
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".
Civil Procedure Code, 1908
Order 39 Rules 1 & 2
Permanent injunction restraining infringement of copyright, passing off, unfair competition, rendition of accounts, delivery up and damages.
In the present case, as mentioned by the plaintiff in the plaint that the plaintiff developed the idea of making animated mythological film on 'Ramayana' in the year 2004. The plaintiff has also filed the assignment deed dated 2nd February, 2005 between the plaintiff and Mr. Sarfaraj Ahmed who has assigned copyrights in the voice over, music and sound recording against consideration. The bill dated 4th January, 2005 is also filed by the plaintiff. The plaintiff has similarly filed another assignment dated 17th June, 2006, 20th May, 2006 and 5th June, 2006 in respect of purchasing various rights for making the animated film 'Ramayana'.
On the other hand, although the defendant has raised the defence that defendant No. 5 has created the work on this animated film 'Ramayana' in the year 2005 however, no cogent evidence in this regard has been filed. The defendant has filed the copyright registration bearing CL No. 1103/2007 in respect of registration of the work. In column No. 9 of the registration certificate, it is mentioned that the work in question was first time published in the year 2007 which is apparently subsequent to work created by the plaintiff in the year 2005. Therefore, the registration is immaterial. The copyright registration is always granted on the basis of declaration made by the party before the copyright office, hence, registration referred by the defendant has no substance. Work in question was first time published in the year 2007 which is apparently subsequent to work created by the plaintiff in the year 2005. Therefore, the registration is immaterial.
The copyright registration is always granted on the basis of declaration made by the party before the copyright office, hence, registration referred by the defendant has no substance.
Permanent injunction restraining infringement of copyright, passing off, unfair competition, rendition of accounts, delivery up and damages.
In the present case, as mentioned by the plaintiff in the plaint that the plaintiff developed the idea of making animated mythological film on 'Ramayana' in the year 2004. The plaintiff has also filed the assignment deed dated 2nd February, 2005 between the plaintiff and Mr. Sarfaraj Ahmed who has assigned copyrights in the voice over, music and sound recording against consideration. The bill dated 4th January, 2005 is also filed by the plaintiff. The plaintiff has similarly filed another assignment dated 17th June, 2006, 20th May, 2006 and 5th June, 2006 in respect of purchasing various rights for making the animated film 'Ramayana'.
On the other hand, although the defendant has raised the defence that defendant No. 5 has created the work on this animated film 'Ramayana' in the year 2005 however, no cogent evidence in this regard has been filed. The defendant has filed the copyright registration bearing CL No. 1103/2007 in respect of registration of the work. In column No. 9 of the registration certificate, it is mentioned that the work in question was first time published in the year 2007 which is apparently subsequent to work created by the plaintiff in the year 2005. Therefore, the registration is immaterial. The copyright registration is always granted on the basis of declaration made by the party before the copyright office, hence, registration referred by the defendant has no substance. Work in question was first time published in the year 2007 which is apparently subsequent to work created by the plaintiff in the year 2005. Therefore, the registration is immaterial.
The copyright registration is always granted on the basis of declaration made by the party before the copyright office, hence, registration referred by the defendant has no substance.
Civil Procedure Code, 1908
Order 39 Rules 1 & 2 —
"Where infringement is deliberate and wilful and the defendant acts fraudulently with knowledge that he is violating plaintiffs rights,essential elements of estoppel are lacking and in such a case the protection of plaintiffs rights by injunctive relief never is properly denied. "The doctrine of estoppel can only be invoked to promote fair dealings" Interim injunction, affirmed
"Where infringement is deliberate and wilful and the defendant acts fraudulently with knowledge that he is violating plaintiffs rights,essential elements of estoppel are lacking and in such a case the protection of plaintiffs rights by injunctive relief never is properly denied. "The doctrine of estoppel can only be invoked to promote fair dealings" Interim injunction, affirmed
Civil Procedure Code, 1908
Section 30
Order 11, Rule 14
Discovery of documents
Documents sought to be discovered need not be admissible in evidence in the enquiry of the proceedings and it is sufficient that the documents would be relevant for the purpose of throwing light on the matter in controversy
HELD
apart from addressing the merits of the suit, the defendants are not claiming any overbearing prejudice; they have also not put up privilege of any kind, in answer to the applications for discovery. The object of discovery is to shorten litigation, as held by the Supreme Court. The court, while considering the application, for such purpose, is not expected to rule on the relative strength or merits of the case; indeed, it cannot even rule on the admissibility of the documents for which discovery is claimed. It should be satisfied that the application further the ends of justice, and trial; it should throw light in the proceedings. Whether the plaintiffs can eventually establish that their confidential information and secrets were or are utilized by the defendants, or that their copyrights were violated, are aspects which can be gone into at the stage of trial. If this court starts prejudging on those aspects, it would be ruling on the application for discovery, on considerations which are not germane. In view of the above discussion, the plaintiffs applications are to be allowed. Accordingly, discovery, of the documents, referred to in Paras 11 (b) and (c) in IA 8624/07 and Para 12 (a) and (b) of IA 8625/2007 is hereby directed, by the defendants, within six weeks.
Order 11, Rule 14
Discovery of documents
Documents sought to be discovered need not be admissible in evidence in the enquiry of the proceedings and it is sufficient that the documents would be relevant for the purpose of throwing light on the matter in controversy
HELD
apart from addressing the merits of the suit, the defendants are not claiming any overbearing prejudice; they have also not put up privilege of any kind, in answer to the applications for discovery. The object of discovery is to shorten litigation, as held by the Supreme Court. The court, while considering the application, for such purpose, is not expected to rule on the relative strength or merits of the case; indeed, it cannot even rule on the admissibility of the documents for which discovery is claimed. It should be satisfied that the application further the ends of justice, and trial; it should throw light in the proceedings. Whether the plaintiffs can eventually establish that their confidential information and secrets were or are utilized by the defendants, or that their copyrights were violated, are aspects which can be gone into at the stage of trial. If this court starts prejudging on those aspects, it would be ruling on the application for discovery, on considerations which are not germane. In view of the above discussion, the plaintiffs applications are to be allowed. Accordingly, discovery, of the documents, referred to in Paras 11 (b) and (c) in IA 8624/07 and Para 12 (a) and (b) of IA 8625/2007 is hereby directed, by the defendants, within six weeks.
Civil Procedure Code, 1908
Order 7 Rules 10 & 11
Plaintiffs "Parshwanath Group" enjoying reputation and goodwill in the trade and general public for last three decades . Defendant "Parsvanath' in respect of identical business
Passing off
Doctrine of "Quia timet action" which means because he fears or apprehends.
Object of the law of passing off is to protect some form of property usually the goodwill of the plaintiff in his business or his goods or his services or in the work which he produces or something of that kind.
HELD
(a) The plaintiffs have made necessary averments in plaint and plaintiffs have satisfied that the plaint fulfills the ingredients of Order 7 Rule 1.. of the Code of Civil Procedure. The plaintiffs have been able to show and prove how the cause of action has been arisen and how the City Civil Court has jurisdiction to try and entertain the Suit. The plaintiffs have also made necessary averments for claiming reliefs in the plaint.
(b) In view of the provisions of the Code of Civil Procedure, particularly Sections 15 to 20 read with judgement of the Hon'ble Supreme Court in the case of A.B.C. Laxminart Pvt. Ltd. (supra) the plaintiffs have been able to prove that right to sue has arisen within city limits of Ahmedabad.
(c) The plaintiffs' Suit for passing off of trade name and trading style against defendant as quia timet action is maintainable at law.
(d) In view of several decisions cited by the learned counsel for the plaintiffs, this Court has considered only averment made by the plaintiffs in plaint and two advertisements produced by the plaintiffs alongwith the plaint (Exh. 4/21,4/22 (pages 84 & 86) regarding maintaining action of passing off.
(e) In view of the fact that the defendant has published advertisements one in Divya Bhaskar and another in Financial Times which are widely circulated in city of Ahmedabad and plaintiffs have also been able to prove and deception and confusion has arisen within city limits of Ahmedabad, the plaintiffs have been able to prove that cause of action has arisen within city limit of Ahmedabad.
(f) The application made by defendant under Order 7 Rule 10 at Exh. 26 is rejected at law.
(g) The application filed at Exh. 26 by defendant under Order 7 Rule 11 is also rejected in spite of several decisions by the learned counsel for the defendant as all the decisions cited by the learned counsel for the defendant are distinguishable in the facts and circumstances of the case which I have already discussed above. [Para 35]
Thus, present writ petition under Article 227 of the Constitution of India is hereby rejected. The impugned order dated 22.12.2006 passed by the City Civil Court No. 9, Ahmedabad below application Exh. 26 in Regular Civil Suit No. 785 of 2006 is hereby confirmed. Interim relief, if any, stands vacated. There shall be no order as to costs. [Para 36]
Patents Act, 1970
Sections 48,64 & 107
As amended in 2003
Registered patent of the plaintiff regarding safety I.V. catheters/cannulae . Exclusive right given to the patent holder to prevent a third party from infringing the patent . However in any suit for infringement of a patent every ground on which the patent may be revoked under section 64 shall is available as a ground for defence . Merely registration of the patent per se does not entitled the plaintiffs to an injunction .
HELD
Patent has been recently registered and is under a serious challenge as to the validity of the patent Therefore validity of Patent not free from doubt . Prayer for an ad interim injunction liable to be rejected.
Civil Procedure Code, 1908
Section 47
Preliminary decree. Execution case. Report of Commissioner appointed for valuation of the trade mark.
HELD
On a perusal of the preliminary decree, it is noticeable that there has been direction that the goodwill of the business carried on by the plaintiff and defendants and the stock-in-hand be sold on the premises and that the Commissioner may on the application of any of the parties fix a reserved building for all or any of the lots at such sale and the either of the parties is at liberty to bid at the sale. The learned single Judge has directed that there would be an auction of the trade mark as that is in consonance with the Intention behind the decree. As there has been direction to carry out auction of the goodwill of the business and the real purpose is to sell the property as assets by way of auction and the trade mark having a different existence, there is no bar to put the same in auction. In fact, it is in accord with the decree.
Writ appeal, dismissed.
Plaintiffs "Parshwanath Group" enjoying reputation and goodwill in the trade and general public for last three decades . Defendant "Parsvanath' in respect of identical business
Passing off
Doctrine of "Quia timet action" which means because he fears or apprehends.
Object of the law of passing off is to protect some form of property usually the goodwill of the plaintiff in his business or his goods or his services or in the work which he produces or something of that kind.
HELD
(a) The plaintiffs have made necessary averments in plaint and plaintiffs have satisfied that the plaint fulfills the ingredients of Order 7 Rule 1.. of the Code of Civil Procedure. The plaintiffs have been able to show and prove how the cause of action has been arisen and how the City Civil Court has jurisdiction to try and entertain the Suit. The plaintiffs have also made necessary averments for claiming reliefs in the plaint.
(b) In view of the provisions of the Code of Civil Procedure, particularly Sections 15 to 20 read with judgement of the Hon'ble Supreme Court in the case of A.B.C. Laxminart Pvt. Ltd. (supra) the plaintiffs have been able to prove that right to sue has arisen within city limits of Ahmedabad.
(c) The plaintiffs' Suit for passing off of trade name and trading style against defendant as quia timet action is maintainable at law.
(d) In view of several decisions cited by the learned counsel for the plaintiffs, this Court has considered only averment made by the plaintiffs in plaint and two advertisements produced by the plaintiffs alongwith the plaint (Exh. 4/21,4/22 (pages 84 & 86) regarding maintaining action of passing off.
(e) In view of the fact that the defendant has published advertisements one in Divya Bhaskar and another in Financial Times which are widely circulated in city of Ahmedabad and plaintiffs have also been able to prove and deception and confusion has arisen within city limits of Ahmedabad, the plaintiffs have been able to prove that cause of action has arisen within city limit of Ahmedabad.
(f) The application made by defendant under Order 7 Rule 10 at Exh. 26 is rejected at law.
(g) The application filed at Exh. 26 by defendant under Order 7 Rule 11 is also rejected in spite of several decisions by the learned counsel for the defendant as all the decisions cited by the learned counsel for the defendant are distinguishable in the facts and circumstances of the case which I have already discussed above. [Para 35]
Thus, present writ petition under Article 227 of the Constitution of India is hereby rejected. The impugned order dated 22.12.2006 passed by the City Civil Court No. 9, Ahmedabad below application Exh. 26 in Regular Civil Suit No. 785 of 2006 is hereby confirmed. Interim relief, if any, stands vacated. There shall be no order as to costs. [Para 36]
Patents Act, 1970
Sections 48,64 & 107
As amended in 2003
Registered patent of the plaintiff regarding safety I.V. catheters/cannulae . Exclusive right given to the patent holder to prevent a third party from infringing the patent . However in any suit for infringement of a patent every ground on which the patent may be revoked under section 64 shall is available as a ground for defence . Merely registration of the patent per se does not entitled the plaintiffs to an injunction .
HELD
Patent has been recently registered and is under a serious challenge as to the validity of the patent Therefore validity of Patent not free from doubt . Prayer for an ad interim injunction liable to be rejected.
Civil Procedure Code, 1908
Section 47
Preliminary decree. Execution case. Report of Commissioner appointed for valuation of the trade mark.
HELD
On a perusal of the preliminary decree, it is noticeable that there has been direction that the goodwill of the business carried on by the plaintiff and defendants and the stock-in-hand be sold on the premises and that the Commissioner may on the application of any of the parties fix a reserved building for all or any of the lots at such sale and the either of the parties is at liberty to bid at the sale. The learned single Judge has directed that there would be an auction of the trade mark as that is in consonance with the Intention behind the decree. As there has been direction to carry out auction of the goodwill of the business and the real purpose is to sell the property as assets by way of auction and the trade mark having a different existence, there is no bar to put the same in auction. In fact, it is in accord with the decree.
Writ appeal, dismissed.
Thursday, May 20, 2010
Civil Procedure Code, 1908
Order 6 Rule 17
Amendment of pleadings
HELD
Privy Council in Ma Shwe My a v. Maung Mo Hnaung, AIR 1922 PC 249 succinctly summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings: (IA pp. 216-17)
"All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit."
Where amendment not likely to change the nature of matter as cause of action in infringement and passing off actions are substantially the same in law therefore proposed amendment is necessary for the purpose of determining the real matter in controversy. HELD amendment sought by the plaintiff is allowed as no prejudice is caused to the defendants in any manner.
Application, disposed of.
Amendment of pleadings
HELD
Privy Council in Ma Shwe My a v. Maung Mo Hnaung, AIR 1922 PC 249 succinctly summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings: (IA pp. 216-17)
"All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit."
Where amendment not likely to change the nature of matter as cause of action in infringement and passing off actions are substantially the same in law therefore proposed amendment is necessary for the purpose of determining the real matter in controversy. HELD amendment sought by the plaintiff is allowed as no prejudice is caused to the defendants in any manner.
Application, disposed of.
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