Principles of Interim Injunction
Principles of Interim Injunction – held: a claim for interim injunction has to be decided on the well-known principles:1)Whether the subject matter of the suit is such that subject matter of the suit requires a status quo to be maintained ;and if yes 2)Whether the plaintiff has disclosed a primary case i.e., triable issue arise which require evidence to resolve the same; 3) Whether irreparable loss and injury shall be caused to the plaintiff if interim relief is declined ;4)Where does the balance of convenience rests;5)Whether due to delay or conduct of a negative kind ,the plaintiff is dis-entitled to the equitable relief of interim injunction if on the first four counts noted the injunction ought to be otherwise granted.
We would prefer to be brief and equally impress upon brevity by learned trial judges while deciding applications seeking interim injunction and leave the rest at the trial ,for a reason a claim for interim injunction has to be decided on the well-known principles: 1)Whether the subject matter of suit is such that the subject matter of the suit requires a status quo to be maintained;and if yes 2)Whether the plaintiff has disclosed a primary case i.e., triable issue arise which require evidence to resolve the same;3)Whether irreparable loss and injury shall be caused to the plaintiff if interim relief is declined;4)Where does the balance of convenience rests;5)Whether due to the delay or conduct of a negative kind,the plaintiff is dis-entitled to the equitable relief of Interim Injunction if on the first four counts noted the injunction ought to be granted.
Registration of a trademark
Appellant applied for registration of a trademark which is advertised in Trademarks Journal.The opposition filed by respondent on the basis of Deed of assignment and the Registrar passed an order to the appellant while without any reference/mention of having satisfied himself about the factual execution /filling of such Deed of assignment.The Appellant then filed review petition raising several grounds including the ground of failure of the respondent in provisioning any Deed of Assignment.The Registrar erroneously dismissed the review petition on the basis of filing of an appeal by the Respondent.The Failure to deal with the point that is specifically raised especially with regard to existence of a documentary evidence is clearly an error apparent on the face of the record and subject to review jurisdiction.The Hon’able Supreme Court and High court ,and sent back to the Deputy Registrar for adjudication.
Source of a trademark in modern day global trading
The conventional theory that a trademark connects in the mind of the consumer,the goods to the source of manufacturer is inapplicable in today’s environment because modern global trading has assumed multi-channel modes of sale of goods in the market.Thus ,in today’s global environment,the theory pertaining to the trademark would be that the trademark connects,in the mind of the consume ,the source where from the goods enter the market whatever may be the nomenclature of that source.It could be the agent,the distributor or even the person who purchases goods from a manufacturer and sells them in the market.
Suit for Interim infringement
Suit for interim infringement of Trademarks,Copyright & passing off in respect of the mark “KRISHNA” for ghee and other dairy products.The order 39 Rule 1 and 2 and order 39 Rule 4 CPC of the Registrar mentions the infringement of the plaintiff’s registered trademark “KRISHNA” by the defendant.So which held,that the word “KRISHNA” is a common name and name of the god /deity that is Lord KRISHNA and is being used by the several manufactures for similar goods for both prior to the year 1993 and thereafter many organisations were used this name.The said mark Krishna is descriptive of the Hindu god and his association with milk products.The plaintiff’s claim to monopoly over the mark “KRISHNA” is not accurate.The sales alone does not transcend in attaining of secondary meaning /distinctiveness of the mark which in present context is a common name /deity name for the plaintiff is monopolize its use to the exclusion of others.It cannot be said that the name as the common name as “KRISHNA” which is in cultural context of our country is as common as the word “JOHN” used in the west ,has achieved in the plaintiff’s case a secondary distinctiveness of the kind that it inalienably related to the consumers to the plaintiff’s products on mere invocation of word KRISHNA .The plaintiff has failed to establish the secondary meaning or distinctiveness for the mark “KRISHNA” .Here,the substantial changes has been incorporated in the label mark of the defendant in so far as color scheme and pictorial representation are concerned to allay any fears of confusion or deception of a reasonable and prudent customer .The Order of January 25th,2010 is accordingly modified allowing the defendant to use the label mark “PARUL LORD KRISHNA” giving similar prominence to the prefixes “PARUL” and “LORD” in its Label mark to that of KRISHNA.According to the order 39 of Rule 1&2 and order 39 Rule 4 CPC applications of defendant are disposed of.
Suit for Interim Injunction of trademark
Taking into account public interest element in case of medical preparations,it was stated :”Public interest would support lesser degree of proof shoeing confusing similarity in the case of trademark in respect of medical product as against the non-medical products.Drugs are poisons,not sweets.Confusion between medicinal products may ,therefore,may life threatening ,not merely inconvenient.Nothing the frailty of human natures and pressures placed by society on doctors,there should be as many clear indicators as possible to distinguish two medicinal products from each other.It is not uncommon that in hospitals,drugs can be requested verbally and/or critical pressure situations .The people may be in a position to differentiate between the medicine prescribed and bought which is ultimately handed over to him. According to the Supreme Court therefore,a sticker approach should be adopted while applying the test to judge the possibility of confusion of one medical product for another by a consumer.Confusions in the case of non-medical product may only cause the economical lose to the consumer .Confusion between the two medical products may have disastrous effect on health,and in some cases on life.Hence,in medicinal preparations ,much more care should be taken and the court,must be circumspect in dealing with the matters and in making appropriate orders .
Effect of Interim Injunction
The case of appellants is that suffix ‘XIN’ being common to both drugs,there is likelihood of confusion .The marks of plaintiff is registered ,and hence,it has statutory protection .It relates to the medicinal preparation.In the circumstances ,in our opinion,the test of possibility laid down in Cadila healthcare Ltd., would apply.Applying the said test,there is likelihood ,or in any case,possibility of consumer being confused ,and the plaintiff’s were entitled to interim injunction.The Division Bench further held that thought it is true that normally in discretionary matters ,an appellate court will not interfere with the order passed by the trail court ,when the correct test is not applied,it was open to the appellate court to interfere with the discretionary order passed by the trail court.The division bench observed as follows “The principle that normally,in discretionary matters,an Appellant Court will not interfere with the order passed by the trial court is well settled.At the same time,however ,when an adjudication has been made,may be and in doing so ,correct test has not been applied,it is open to the Appellant Court interfere with the discretionary order made by the trial court.
In the instant case,correct test is ‘possibility’ of confusion and not actual confusion which should have been brought on record by placing necessary material.The point is finally set at rest in Cadila Healthcare Ltd., and the order passed by the single learned judge cannot be sustained”. Be that as it may,once the learned single judge had come to the conclusion that the two marks are phonetically similar,than all that the plaintiff had to show was that their mark was registered,the interim injunction ought to be followed,based on their statutory right. The fact that one was a blister pack and other was a strip pack is not relevant to decide the said question.The difference with regard to XR and the OD is also only in favor of the appellant.It is true that the trademark has to be taken as a whole and therein lies a case in favor of the appellant.It is possible for the respondents’ goods to be treated as identical or very similar to that of the plaintiffs.It is possible for the consumer to think it was identical ,the only difference being that one was an extended release tablet,while the other was once a day tablet.The similarity is apparent .The defendants have not persuaded us that their product is not likely to deceive or cause confusion.So,the relief of interim injunction must be granted.
Suit for interim injunction,damages and delivery up the infringing product and material
The Trademark CASIO,manufacturing of calculators ,the plaintiff company adopted and has been using the trademark CASIO since 1957.The defendant No.1 selling counterfeit calculators to the defendant no.2 to 5 under trademark CASIO.The quality of second CASIO calculators is inferior and a number of important features missing from them.Layout of the keys and the nuts of the calculators .purchased from the defendants are different from the genuine CASIO calculators.The number and power of batteries also different from the another.A degree of interim injunction with the costs is passes in favor of plaintiff and against the defendants no.1 to 4 restraining them from manufacturing ,selling,promoting or advertising any calculator bearing trademark CASIO or any other mark identical with deceptively similar to the trademark CASIO,unless it is a genuine calculator manufactured by the plaintiff company.
Suppression and concealment of Material facts and documents-vacation of Ex.parte Interim Injunction
The suppression and concealment of material facts and documents of the vacation of Ex.parte interim injunction is explained that the following example.The Respondent No.1 has concealed in the plaint that the appellant is registered proprietor of the trademark CAPSOLA in class 31 for animal feed supplements.The Respondent No.1 has also not filed with the pliant or with the affidavit letter on the Annexure A to the agreement dated 1st November 2005 entered into by it with the appellants,while replying on said document – held ,in view of above the Ex parte interim injunction dated 13th January 2010 extended by the order 15th March 2010 is vacated and I.A.Nos.307 /2010 and 1903 /2003 in CS(OS) no.40/2010 are accordingly disposed of.To ensure that the parties to the plaint are not prejudiced ,the Appellants are directed to maintain the accounts and submit a six monthly statement thereof before the learned single Judge in CS(OS) No. 40/2010.
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