Case Note & Summary
The dispute arose from a civil suit filed by the respondent (plaintiff) seeking permanent injunction, declaration of exclusive trademark rights under Sections 2(1)(zg) and 11(6) of the Trade Marks Act, 1999, and damages for infringement of trade dress and trademark. The plaintiff alleged that the appellant (defendant) used a similar brand name 'BABA' with identical packaging and trade dress. The defendant's written statement was not taken on record. During cross-examination, the defendant sought to put a question to the plaintiff: 'Is it correct that you have no document to show since when mark BABA is being used?' The High Court expunged this question, holding it to be a purely factual question beyond permissible cross-examination, given that the defendant’s written statement was not on record. The defendant appealed to the Supreme Court. The Supreme Court considered the narrow issue of whether such a question was permissible. The plaintiff contended that without a written statement, the defendant could not raise this factual query. The Court disagreed, observing that the plaintiff’s own affidavit and plaint specifically asserted trademark infringement and claimed exclusive rights over the brand name. In such circumstances, even without a written statement, the defendant was entitled to test the plaintiff’s claim by querying the evidentiary basis for the timeline of brand usage. The Court noted that the question directly challenged the plaintiff’s assertion of infringement. Accordingly, the Supreme Court set aside the High Court’s order and directed the trial court to proceed after recalling the plaintiff to answer the question. The Court clarified that no observations were made on the merits of the case. The appeal was allowed.
Headnote
A) Civil Procedure - Cross-Examination - Entitlement of Defendant to Cross-Examine Despite Absence of Written Statement - Code of Civil Procedure, 1908 - In a suit for infringement of trademark and damages, where the plaintiff asserts a specific brand name, the defendant, even if his written statement is not on record, is entitled to put a question to the plaintiff seeking a document to prove the time from which such brand name was used by the plaintiff. The High Court erred in expunging the question as purely factual beyond permissible cross-examination. Held, the defendant's right to challenge the plaintiff's claim on this point cannot be curtailed. (Paras 6-9)
Issue of Consideration
Whether the defendant, whose written statement was not on record, was entitled to put a question during cross-examination to the plaintiff regarding the time from which the brand name was used.
Final Decision
Supreme Court allowed the appeal, set aside the High Court’s order expunging the question, and directed the trial court to proceed after recalling the plaintiff to answer the question. The question ‘Is it correct that you have no document to show since when mark BABA is being used?’ was held to be a permissible question, as the defendant is entitled to query the plaintiff on the document to substantiate the time of brand usage when plaintiff affirms trademark infringement, regardless of written statement being on record. No observations made on merits.
Law Points
- When plaintiff affirms trademark infringement
- defendant entitled to question plaintiff on document showing since when brand name used
- even if defendant's written statement not on record.
