Court allows appeal in trademark case, rules second suit not barred by previous action.

The Supreme Court allowed the appeal, setting aside the judgments of the Trial Court and High Court, and decreed in favor of the plaintiff in a trademark infringement and passing off case. The Court held that the second suit was not barred by Order 2 Rule 2 Sub-rule (3), CPC, as the defendants failed to establish the identity of the cause of action due to lack of pleadings from the first suit. The continuous nature of the infringement and passing off actions provided a fresh cause of action, justifying the filing of the second suit. Costs were awarded to the plaintiff.

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Issues Involved:
1. Whether the suit filed by the appellant was barred by Order 2 Rule 2 Sub-rule (3) of the Code of Civil Procedure, 1908 (CPC).
2. Whether the suit was barred by res judicata.
3. Whether the defendants were infringing the plaintiff's registered trademark and passing off their goods as those of the plaintiff.

Issue-wise Detailed Analysis:

1. Bar by Order 2 Rule 2 Sub-rule (3), CPC:
The core issue was whether the second suit filed by the plaintiff was barred by Order 2 Rule 2 Sub-rule (3), CPC. The rule mandates that a plaintiff must include the whole claim in respect of the cause of action in one suit. If a plaintiff omits to sue for a portion of the claim or for any relief available, they cannot subsequently sue for the omitted portion or relief unless they had obtained leave of the court. The defendants argued that the second suit was based on the same cause of action as the first suit and thus barred. However, the Supreme Court highlighted that the defendants failed to produce the pleadings of the earlier suit, which is a threshold requirement as per the Constitution Bench ruling in Gurbux Singh v. Bhooralal. Without the pleadings from the first suit, the defendants could not establish the identity of the cause of action. The Court also noted that the second suit was based on continuous and recurring infringement of the trademark and passing off actions, which provided a fresh cause of action. Therefore, the second suit was not barred by Order 2 Rule 2 Sub-rule (3), CPC.

2. Bar by Res Judicata:
The learned Single Judge of the High Court had already determined that the suit was not barred by res judicata. The Supreme Court did not find it necessary to delve further into this issue as it was not contested in the appeal.

3. Infringement of Trademark and Passing Off:
On the merits, the High Court had agreed with the plaintiff, finding that the waterproof raincoats manufactured by the defendants bearing the trademark 'DACK BACK' phonetically and visually resembled those of the plaintiff bearing the trademark 'DUCK BACK'. This resemblance led to confusion among consumers, amounting to passing off. The Supreme Court upheld this finding, noting that the plaintiff had established a case for actionable breach of infringement of the trademark and passing off. The continuous and recurring nature of the defendants' actions provided a fresh cause of action for the plaintiff, justifying the filing of the second suit.

Conclusion:
The Supreme Court concluded that the second suit was not barred by Order 2 Rule 2 Sub-rule (3), CPC, due to the failure of the defendants to produce the pleadings from the first suit and the continuous nature of the infringement and passing off actions. Consequently, the appeal was allowed, the judgments of the Trial Court and the High Court were set aside, and the plaintiff's suit was decreed as prayed for. The plaintiff was awarded costs throughout.

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