Case Note & Summary
The plaintiff, Essel Propack Ltd., filed a suit in 2010 against Essel Kitchenware Ltd. and another defendant for trademark infringement and passing off of the mark 'ESSEL'. The plaintiff had earlier obtained leave under Clause XIV of the Letters Patent to combine causes of action. The first defendant raised a preliminary issue of jurisdiction under Section 9A CPC, which was decided against it on 31 August 2015/1 September 2015, and that order was not appealed. The first defendant also filed a notice of motion for rejection of plaint and stay under Section 10 CPC, which was dismissed on 2 December 2015. The plaintiff's notice of motion for interim relief remained pending. The court considered the plaintiff's application for a receiver and injunctions. The plaintiff argued that the defendant's repeated delaying tactics should not deprive it of relief. The court agreed, noting that the plaintiff had made out a prima facie case of infringement and passing off, and the balance of convenience was in its favor. The court granted an injunction restraining the defendants from using the mark 'ESSEL' or any deceptively similar mark, and appointed a receiver to take inventory of the defendant's goods. The court also directed the defendants to render accounts.
Headnote
A) Trade Marks - Infringement and Passing Off - Interim Injunction - Plaintiff sought injunction against defendant using mark 'ESSEL' for kitchenware - Court held that plaintiff made out a prima facie case of infringement and passing off, and balance of convenience favored plaintiff - Delay caused by defendant's preliminary objections cannot be used to deny relief (Paras 1-4, 30-38).
B) Civil Procedure - Preliminary Issue under Section 9A CPC - Jurisdiction - Defendant raised issue of jurisdiction which was decided against it - Order not appealed - Court noted that such tactics cannot delay grant of injunction (Paras 2-4).
C) Trade Marks - Section 124 Trade Marks Act 1999 - Stay of Suit - Defendant sought stay under Section 10 CPC citing prior suit - Motion dismissed - Court held that repeated applications by defendant cannot be invoked to deny injunction where sufficient cause is shown (Paras 3-4).
Issue of Consideration
Whether the plaintiff is entitled to an interim injunction and appointment of a receiver in a suit for trademark infringement and passing off, despite the delay caused by the defendant's preliminary objections regarding jurisdiction and stay of suit.
Final Decision
The court allowed the notice of motion, granting an injunction restraining the defendants from using the mark 'ESSEL' or any deceptively similar mark in relation to kitchenware or any other goods, and appointed a receiver to take inventory of the defendant's goods and render accounts.
Law Points
- Trademark infringement
- Passing off
- Interim injunction
- Delay due to preliminary objections
- Section 9A CPC
- Section 124 Trade Marks Act 1999
- Clause XIV Letters Patent
Case Details
Notice of Motion No. 370 of 2010 in Suit No. 272 of 2010
Mr. Ashish Kamat, a/w Mr. Rahul Dhote & Mr. Minesh Andheria, i/b M/s. Krishna & Saurashtri Associates (for Plaintiff); Mr. Sandeep Parikh, a/w Mr. Amesh Gajria & Ms. Deepa Hale, i/b M/s. Gajria & Co. (for 1st Defendant)
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Nature of Litigation
Suit for trademark infringement and passing off with notice of motion for receiver and injunctions.
Remedy Sought
Plaintiff sought appointment of a receiver and interim injunctions restraining the defendants from using the mark 'ESSEL' or any deceptively similar mark.
Filing Reason
Plaintiff alleged that the defendants were using the mark 'ESSEL' for kitchenware, which infringed its registered trademark and amounted to passing off.
Previous Decisions
Leave under Clause XIV Letters Patent granted on 23 March 2010; preliminary issue under Section 9A CPC decided in favor of plaintiff on 31 August 2015/1 September 2015 (not appealed); defendant's notice of motion for rejection of plaint and stay under Section 10 CPC dismissed on 2 December 2015.
Issues
Whether the plaintiff is entitled to an interim injunction and appointment of a receiver in a suit for trademark infringement and passing off.
Whether the delay caused by the defendant's preliminary objections should disentitle the plaintiff from interim relief.
Submissions/Arguments
Plaintiff argued that the defendant's repeated delaying tactics should not be allowed to deprive it of relief, and that a prima facie case of infringement and passing off was made out.
Defendant argued that the suit was barred by jurisdiction and that there was a prior suit pending, but these objections were already rejected.
Ratio Decidendi
The court held that the plaintiff had made out a prima facie case of trademark infringement and passing off, and the balance of convenience was in favor of granting interim relief. The delay caused by the defendant's preliminary objections could not be used to deny relief, as the court must endeavor to do complete and substantial justice.
Judgment Excerpts
This is a Notice of Motion for a Receiver and injunctions in an action for trade mark infringement and passing off.
The principle that a court must endeavour to do complete and substantial justice cannot be quelled by such applications.
Procedural History
Suit filed in 2010. Plaintiff filed petition for leave under Clause XIV Letters Patent, granted on 23 March 2010. Plaint amended. Preliminary issue under Section 9A CPC framed on 2 December 2011. Evidence led and cross-examination conducted. Preliminary issue decided in favor of plaintiff on 31 August 2015/1 September 2015. Defendant's notice of motion for rejection of plaint and stay under Section 10 CPC dismissed on 2 December 2015. Plaintiff's notice of motion for interim relief heard and decided on 10-11 March 2016.
Acts & Sections
- Code of Civil Procedure, 1908: Section 9A, Section 10
- Trade Marks Act, 1999: Section 124
- Letters Patent: Clause XIV
