Ad-interim injunction – Trademark Registration in Coimbatore
Ad interim injunction – Trademark registration in Coimbatore:
Here, we are going to see the interim injunction in detail with some real time examples to make you understand clearly.
Order 39 rule 1&2:
Order 39 rule 1 and 2 – ad interim injunction restraining the defendant from manufacturing, selling, marketing, advertising or in any manner whatsoever 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-In passing off it has to be shown 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 product in question, using the plaintiff’s trademark ‘SUPER BRIGHT’-There may be loss of reputation and the goodwill by the plaintiff if the injunction been refused- plaintiffs can able to show the prima facie that they are the prior users of the mark and they have made out a prima facie case in order to grant the ad interim injunction in their favour injunction in favour of the plaintiff, granted.
The appellants have been using the mark earlier than the defendant. The balance of convenience in granting the injunction is clearly therefore in favor of the appellant. The observations of the Supreme Court in Milment oftho industries and Whirlpool Corporation as to the equities weighing in favor of the prior user are equally relevant in the present context.
The law being sufficiently clear, this court is of the view that the appellants have been demonstrated that they not only have a prima facie but also the balance of convenience in order to grant the interim injunction as prayed entirely for their favor.
We are not impressed with the submission of the defendant-respondent that the plaintiff must be denied an injunction on the grounds of acquiescence and delay.
Suman machines Pvt.Ltd v. power control appliances hasn’t supported the defendant. The Supreme Court held that there was nothing on record to show on the facts of the said case. The first defendant, in that case, is actually an earlier manufacturer and there can be only one source, one mark, and one proprietor. It couldn’t have two origins.
On the materials placed on record in the said case, it was held that “the denial of an injunction, once the infringement of trademark, copyright, and design is established, cannot be supported.” Reverting to the case on hand, for the reasons already explained, in the present case We are very satisfied that the plaintiffs can 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 favor.
Accordingly, the impugned order of the learned single judge is set aside. There will be injunction in favour of the plaintiff-appellant restraining the respondent-defendant from manufacturing or authorising the manufacture, selling or offering for sale, marketing, advertising, promoting, displaying or in any other manner whatsoever using the trademark SUPER BRIGHT and or SUPER BRIGHT EL-C and /or SUPER BRIGHT EL-81 and/or SUPER BRIGHT HD ULTRA and/or SUPER BRIGHT bleach and/or any other trademark which is deceptively or confusingly similar to the above trademarks. The injunction will operate prospectively subject to the condition that the defendant maintains the complete accounts of all the sales which have been made by the products sold to the army or any other person till the date of the present order.
The injunction would have continued till the disposal of the suit. We have been informed that the army authorities been desisted from inviting the tenders for supply of SUPER BRIGHT products through the open tender process. In any event, the law as explained in this judgement will continue to govern future similar tenders.
Ad-interim injunction- Right of retired partner:
Order 39 rule 1&2 R/w section 151- Ad-interim injunction- right of retired partner- scope of re-constituted firm- partnership deed dated 3.8.2009 between the plaintiff and defendant- The said partnership was running business of catering and food outlets and banquets hall under the trademark/trade name/copyright CITY BANQUET- Retirement of defendant from the said firm by virtue of re-constituted firm- At the retirement, the defendant assigned all rights, title, and goodwill, and assets of the business in favour of the plaintiff- for grant of interim injunction, plaintiff can able to make out a strong case and the convenience also lies when its favour for plaintiff.
There are some of the facts between the parties that are to be admitted. They are as follows:
- Here is an example to make you clear. The partnership deed which has been dated 3/8/2009 between the plaintiff and the defendant;
- The said partnership was running the business of catering and food outlets and banquets hall under the trademark/trade name/copyright CITY BANQUET.
- The retirement of a defendant from the said firm by virtue of re-constituted firm.
- At the retirement, the defendant assigned all rights, title and goodwill and assets of the business in favor of the plaintiff.
There are sufficient documents produced on record by the plaintiff pertaining to the abovementioned admitted facts. The plaintiff has submitted that the defendant might be a former partner in the firm M/s. Rajinder and company who may have been using the name CITY BANQUET and the logo CB and as per documents but the fact remains which is admitted that the defendant has invested the name CITY BANQUET in the partnership dated 3.8.2009 between the plaintiff and the defendant. The defendant has not denied the factum of his retirement from the said partnership business except the arguments were addressed that his retirement from the said firm and assigning the will and other assets etc. for the favor of plaintiff which was subject to the balance sheet that belongs to the continuing parties.
The relevant clauses 7 to 9 of the re-constitution deed dated 10.7.2011 are reproduced:
The continuing parties may take over the goodwill of the firm which means they shall be at liberty to carry on the business under the name and style of M/s Shree Ganesha enterprises. The continuing parties shall be at liberty to take any other partners in the said business and the retiring party shall have no objection whatsoever.
Goodwill and other assets as per the balance sheet may belong to the continuing parties and the retiring parity will not have any interest whatsoever in the said business from the date of retirement.
With effect from 10th July 2011, the party who is retiring would not be entitled to any rights and privilege of a partner in a business of the firm which may be continued by the continuing parties.
Ms. Prathiba who is a learned counsel appears on behalf of defendants submitted that the entire consideration against the goodwill on the date of retirement has not received by the defendant. She orally admitted that the defendant has received the part amount from the plaintiff in cash.
On the other side Mr.Bansal, learned counsel appearing on behalf of the plaintiff has informed that in terms of clause 8 of the deed the entire amount was paid to the defendant. He further argued that once the defendant has been retired from the firm, no arguments of this nature are available to the defendant who can file the separate proceeding in this regard.
It becomes necessary to discuss in law as to what the nature of the partnership property is and what will happen when the firm gets dissolved or reconstituted.
The Indian partnership act, 1932 provides for a mechanism for dealing in property which has been the subject matter of partnership firm upon dissolution of the firm. In this context, the relevant section of the partnership act 1932 relating to the same is reproduced hereinafter:-
The right of partners to have business wound up after dissolution. On the dissolution of the firm every partner or his representative is entitled, against all the representatives or their respective partners to have a property of the firm which has been applied in payment of the debts and liabilities of the firm and in order to have the surplus distributed among the partners or their representatives according to their rights.
From a bare reading of the above section 46, it becomes clear that the assets/properties belonging to the partnership vests in the firm as the section uses the expression “property of the firm” and not in the individuals and upon dissolution.
Water purifiers disparaged by the advertisement:
As per the order 39 rule 1&2- Impugned advertisement disparages the water purifiers that are manufactured by ITW which is based on both UV(Ultra Violet) and RO(Reverse Osmosis) technology as the literature which is produced by the plaintiff itself that would show the use of UV rays in the treatment of water, this process is also known as electronic boiling-water purifier which is based on RO technology involves usage of membranes which act as filters to help remove contaminates from the water-Defendant also using marks which advert to the RO technology or to both RO and UV technology- for a plaintiff to succeed in an action for malicious falsehood he would have to plead and prove that the statement made in the impugned advertisement is untrue- No case for disparagement- It would help the cause of a common consumer if the defendant in line with its own stand indicates the other attributes of its purification of water method which is based on RO and UV technology- The defendant shall make a suitable amendment in the impugned advertisement.
Agreement to develop software with the proposal to assign the developed software:
Order 39 rule 1&2- copyright act, 1957- section 57- Agreement to develop software with the proposal to assign the developed software-dispute between the parties- No formal assignment deed is issued by plaintiff in favour defendant- Prima facie case- Loss if can be compensated in terms of money- Use of programme by the defendant without actual assignment amounts to violation of copyright-interim injunction granted.