Permanent injunction of a trademark with real time examples

Permanent injunction

Order 39 rule 1&2 – permanent injunction – when the court of first instance exercise its discretion in order to grant or refuse to grant the relief of temporary injunction and the said exercise if it based on objective consideration of the materials placed before the court and it can be supported by cogent reasons, the appellant court will not interfere because it’s a de nova consideration of a matter. It is possible for the appellant court in order to form a different opinion on the issue of the prima facie case, irreparable injury, a balance of convenience and equity.

We have considered the entire matter thoughtfully. Before pronouncing the tenability or otherwise of the appellant’s prayer for restraining the respondents from using the word “Skyline” for the Institute of engineering and technology which has been established by them it is necessary to consider and observe that the suit filed by the appellant is pending trial and the issues which have been raised by the parties are yet to be decided.

The high court rightly consider and decide the appellant’s prayer for temporary injunction on the basis of undisputed facts and the material which has been placed before the learned single judge and unless this court comes to the conclusion that the discretion exercised by the high court comes to the conclusion that the discretion exercised by the high court in refusing to entertain the appellant’s prayer for temporary injunction that is vitiated by an error that is apparent or perversity and injustice which has been done to it, there wouldn’t be any warrant for exercising the power under the article 136 of the constitution.

In the case of Wander ltd., Antox India (P) Ltd, the court has been called upon to in order to determine the scope of appellate court’s power to interfere with the discretion that is exercised by the court of the first instance in granting or refusing the prayer for a temporary injunction.

The court actually called upon in order to determine the scope of appellate court’s power to interfere with the discretion which is exercised by the court of the first instance in refusing or granting the prayer for a temporary injunction. The case facts were in the suit filed by it, respondent Antox India (P) Ltd. had prayed for restraining the appellant from using a registered mark “Cal-De-Ce”. The judge of the high court refused to entertain the respondent’s prayer but when reconsidering the matter of the division bench, passed an order of permanent injunction.  This court may reverse the order of the division bench and observed:

In such a kind of appeals, the appellate court would not interfere with the exercise of discretion of the court of the first instance and it substitute its own discretion except for the discretion that shown to be exercised arbitrarily or perversely or capriciously or where the court ignored the settled principles of law that may regulate the grant or refusal of interlocutory permanent injunction.

An appeal which is against the exercise of discretion is said to be an appeal on principle. The court would not reassess the material and seek to reach a conclusion which is different from the one reached by the court below if the particular one reached by that court was reasonably possible on the material. Usually, the appellate court normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at a trial stage, it may come to a contrary conclusion. If the discretion is exercised by the trial court reasonably and in a judicial manner the fact that the appellate court may take a different view which may not justify the interference with the trial court’s exercise of discretion.

The proposition of law laid down in wander Ltd. v. Antox India (P) Ltd. was reiterated in N.R.Dongre V.Whirlpool Corporation in which this court considered the correctness of an order of temporary injunction passed by the learned single judge of the Delhi high court in a suit filed by the respondents to restrain defendants from manufacturing, selling, advertising or in any way using the trademark “whirlpool” or any other trademark deceptively or confusingly similar to the trademark “whirlpool” in respect of their goods. The claim of the plaintiffs’ respondents was based on a prior user of the mark “whirlpool”. After considering the rival pleadings and material placed before him, the learned single judge granted a temporary injunction. The division bench confirmed that order and dismissed the appeal preferred by the appellant. This court declined to interfere with the discretion to interfere with the discretion exercised by the learned single judge and division bench of the high court and held:

A permanent injunction is based on equitable principles and it is an equity relief.  The weight of equity at the concurrent findings stage is in favor of the plaintiffs and against the defendants. It is also to keep in mind that a mark in the form of a word which is not a derivative of a product, points to the source of a product.

“Permanent Injunction is a relief in equity and is based on equitable principles. On the above concurrent findings, the weight of equity at this stage is in favor of the plaintiffs and against the defendants. It has also to be borne in mind that a mark in the form of a word which is not a derivative of the product, points to the source of the product. The mark/name “whirlpool” is associated for long, much prior to the defendants’ application in 1986 with the whirlpool corporation, plaintiff 1. In view of the prior user of the mark by plaintiff 1 and its trans-border reputation extending to India, the trademark ‘whirlpool’ gives an indication of the origin of the goods as produced from or relates to the whirlpool corporation, plaintiff 1.

The high court has recorded its satisfaction that uses the “whirlpool” marks by the defendants indicates prima facie an intention to pass off the defendants washing machines as those of the plaintiffs or buyers being misled or confused into that belief.

The ratio of the above noted judgements is that once the court of the first instance exercises its discretion to grant or refuse to grant relief of discretion and  permanent injunction is based upon objection consideration of a material which has to be placed before the court and that will be supported by a clear and a convincing reasons, the appellate court may be unwilling to interfere because on a de novo consideration of a matter, which is possible for the appellate court in order to form a different opinion on the issue of prima facie case, balance convenience, irreparable injury and equity.

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