TaxTMI 
TaxTMI 
2006 (8) TMI 528
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....6 being Trademark No.447700. Another partnership deed was executed in supersession of the earlier partnership deed wherein new partners were inducted. On 06.01.1989, the appellant company was incorporated whereby and whereunder the pattern of shareholding amongst the three brothers was : Arvindbhai Group (40%); Hasmukhbhai Group (30%); and Pravinbhai Group (30%). The registered trademark was assigned by 'Ramdev Masala Stores' in favour of the appellant by a deed dated 20.05.1990. However, by the said deed the goodwill was not assigned. The trademark together with the goodwill was assigned in favour of the appellant company by another deed of assignment dated 20.05.1992. A 'user' agreement was also entered into by the same parties permitting the firm 'M/s. Ramdev Masala Stores' to use the said trademark subject to the terms and conditions stipulated therein. Another partnership firm being 'Ramdev Masala' was started on 01.04.1991 for carrying on the trade of grinding and trading of masalas. A user agreement was also entered into by and between the appellant company and the said firm permitting the latter to use the registered trade mark for seven year....
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....t again, the partnership deed of Ramdev Masala was amended on 01.04.1995; in terms whereof the business of the said firm was confined only to trading in spices manufactured by the appellant company. In other words, the respective businesses under the partnership deeds of the said firms are stated to be as under: a. Type of business of Ramdev Masala under the first partnership deed was grinding and selling of spices. b. Type of business of M/s. Ramdev Masala under the second partnership deed was trading in spices. c. The business of M/s. Ramdev Exports was exporting the goods manufactured by the appellant company. DISPUTES 5. Disputes and differences having arisen between the members of the family and in particular between the three brothers, the same was settled by their well-wishers, pursuant whereto and in furtherance whereof a Memorandum of Understanding (MOU) was executed by and between the parties, to which we would advert to a little later. LEGAL PROCEEDINGS 6. On the premise that the respondents had been infringing its rights, trade name and logo, the appellant company filed a suit in the City Civil Court, Ahmedabad, which was numbered ....
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....RESPONDENTS 8. The principal defences raised by the respondents in the said suit are as under: (i) The appellant has no exclusive statutory right to use 'Ramdev' apart from the label as a whole. (Sections 15 and 17 issue) (ii) The first respondent has a right to use the mark as concurrent user; (Section 29 issue) (iii) That the use complained of is protected, as bona fide user and furthermore the appellant is not entitled to the reliefs sought for as the same were barred under the principles of estoppel, acquiescence, etc. ORDER ON THE APPLICATION FOR INJUNCTION 9. By a judgment and order dated 17.03.2000, the learned Trial Judge opined that the plaintiff company was the owner of the trademark. It was further held that the defendants had started manufacturing and marketing the same business which is deceptively similar to the trademark of the plaintiff which created confusion in the mind of public. However, the defendants were given liberty to manufacture spices in their factory and sell the same in seven outlets under the trademark 'Ramdev Masala'. 10. On an interpretation of the said MOU dated 30.05.1998, it was, inter alia, ....
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....g the words "Ramdev Masala" in such a manner that it creates confusion in the minds of customers. It was, therefore, opined that the respondents had been passing off their goods as if it was manufactured by the appellant. The learned Judge, however, opined that as per the provisions of the Prevention of Food Adulteration Act, 1955, it was mandatory to disclose the name and address of the manufacturer they have been writing their name "Ramdev Masala" as manufacturer which does not create any deception or confusion. Noticing that the appellant got it entered in the records of the Registrar of Trade Mark by following due procedure and acknowledging that the appellant company is the registered proprietor of trade name bearing logo of "Ramdev", it was held that as the respondents had started manufacturing and marketing spices under the trade name "swad" and they had been selling spices in small packets and in view of the averments made by the appellant that the labels and packings adopted by the respondents were deceptively similar to the registered trademark 'Ramdev' and, therefore, passing off goods as it is manufactured by the plaintiff. The learned Judge further observed: ....
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....the defendants for their goods under the trade- name "Swad" containing word "Ramdev Masala" is creating infringement of the trade-mark of the plaintiff as it is deceptively similar. Therefore, the defendants should be prevented in using the word "Ramdev Masala" on their label and packing in any manner. However, the defendants are at liberty to manufacture and market spices in any trade name without using the word "Ramdev" or "Ramdev Masala". The respondents were, thus, restrained by temporary injunction from using registered trademark, logo 'Ramdev' or any other trademark, which is identical and deceptively similar to the trademark of the appellant in respect of label and packing material of their goods except in seven outlets mentioned in MOU till final disposal of the suit. They were held to be at liberty to run business of spices under the trade name 'Ramdev Masala' without using the registered trademark 'Ramdev Masala' except in seven outlets. HIGH COURT JUDGMENT 12. Both the parties preferred appeals thereagainst before the High Court. The High Court by reason of its judgment opined: (i) The chain of events goes to show that the busine....
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....d constitute an infringement thereof. (ii) As there can be only one mark, one source and one proprietor and in particular having regard to the public interest, it was impermissible for the Trial Judge as also the High Court to allow the respondents to use the registered trade mark of the appellant either in the seven outlets or the goods manufactured by them independently. (iii) The trade mark 'Ramdev Masala' used by the respondents being deceptively similar with that of the registered trade mark, the same would interfere with the quality control product of the appellant and, thus, an order of injunction as was prayed for should have been passed. (iv) The learned Trial Judge as also the High Court misconstrued and misinterpreted the provisions of the 1958 Act vis-`-vis Prevention of Food Adulteration Act and Standards of Weights and Measures Act, as in a case of such nature, a mandatory injunction could be issued directing change of the corporate name of the respondent No.1; as the appellant's right to protect its trade mark is absolute. (v) By reason of the MOU, the respondents were only allowed to carry on the existing trade and the....
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....een the members of the family, which was sought to be avoided by the MOU. (vii) In view of the stipulations made in the MOU whereby and whereunder Shri Arvindbhai became the absolute owner of both 'Ramdev Exports' and 'Ramdev Masala' and Hasmukhbhai and Pravinbhai haing given up their right thereupon, the First respondent is entitled to carry on the said business in those names which were not required to be changed by reason of the said MOU. (viii) Furthermore, the stipulations made in the MOU clearly do not oblige the respondent to buy any product from the appellant- Company, and in the event, if it be held that the respondent is bound to sell only the products of the appellant, running of business by the respondent would clearly depend upon the supply of the materials by the appellant alone. (ix) As by reason of the said MOU, the respondent No.1 became entitled to use of mark from seven outlets, the same envisages its right to sell goods having the said mark and not sell of the plaintiffs' goods alone. The MOU must be interpreted in the light of the deed of retirement dated 1.6.1998, which categorically contained a stipulation that t....
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....shall satisfy all the conditions applying to and have all the incidents of, an independent trade mark. (3) Where a person claiming to be the proprietor of several trade marks in respect of the same goods or description of goods which, while resembling each other in the material particulars thereof, yet differ in respect of- (a) statement of the goods or services in relation to which they are respectively used or proposed to be used; or (b) statement of number, price, quality or names of places; or (c) other matter of a non-distinctive character which does not substantially affect the identity of the trade mark; or (d) colour; seeks to register those trade marks, they may be registered as a series in one registration. 17. Registration of trade marks subject to disclaimer.----If a trade mark - (a) contains any part- (i) which is not the subject of a separate application by the proprietor for registration as a trade mark; or (ii) which is not separately registered by the proprietor as a trade mark; or (b) contains any matter which is common to the trade or is otherwise of a non-distinctive character, The tri....
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.... persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor." Section 29 provides for the consequences of infringement of trade marks in the following terms: 29. Infringement of registered trade marks.--(1) A registered trade mark is infringed by a person who, not being a registered proprietor of the trade mark or a registered use thereof using by way of permitted use, uses in the course of trade mark which is identical with, or deceptively similar to, the trade mark in relation to any goods in respect of which the trade mark is registered and in such manner as to render the use of the mark likely to be taken as being used as a trade mark. (2) In an action for infringement of a trade mark registered in Part B of the register an injunction or other relief shall not be granted to the plaintiff if the defendant establishes to the satisfaction of the court that the use of the mark of which the plaintiff complains is not likely to deceive or cause confusion or to be taken as indicating a connection in the course of trade between the goods in respect of which the trade mark is registered and some pers....
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.... 21. We may proceed on the basis that the MOU answers the principles of family settlement having regard to the fact that the same was actuated by a desire to resolve the disputes and the courts would not easily disturb them as has been held in S. Shanmugam Pillai and Others v. K. Shanmugam Pillai and Others [(1973) 2 SCC 312], Kale and Others v. Deputy Director of Consolidation and Others [(1976) 3 SCC 119] and Hari Shankar Singhania & Ors. v. Gaur Hari Singhania & Ors. [JT 2006 (4) SC 251]. Although at one point of time the appellant-Company had taken a stand that it being not a party to the MOU, it is not bound by the terms thereof but the same would not mean that in an action for infringement of trade mark, when the MOU was put as a shield to its claim, it could not have taken recourse to proper interpretation thereof for the purpose of determination of the rights of the parties to use the trade mark in question. It is not a case where the courts refused to lean in favour of family arrangement or base its decision on technical or trivial ground. We have been taken through the MOU again and again. It fell for judicial interpretation. Interpretation processes were undertaken b....
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....llage Sola. Another factory was constructed on block No. 527, 542 and 528 at Changodar. The Joint family, viz., the Partnership (Ramdev Masala) had been selling goods in retail in the name of 'Ramdev Masala' to seven outlets named therein. (iii) The export business in respect of goods, viz., pepper-spices, instant mix, groceries and other articles was being done in the name of Ramdev Exports. The Trade Mark or trade name which was registered in the name of the company, viz., Ramdev and its logo of a saint astride on a horse with a standard went to the Company. The expression "Ramdev" is written in the Gujarati language just above the said logo and the word "masala" which is again in the Gujarati language appears just below the same. 24. Arvindbhai became the exclusive owner of the business Ramdev Exports (Partnership Firm) and Ramdev Masala (another Partnership Firm). MOU contained a clarification to the effect that the other two brothers, viz., Hasmukhbhai and Pravinbhai became the owners thereof and would carry on the management of the business of the Company. The two brothers, Hasmukhbhai and Pravinbhai were given the right to carry on export business unde....
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....ort to distinguish his goods from similar goods sold by other traders. Even today the grant of a trade mark is an indicator of exclusivity in trade under that mark and this right cannot be transferred. Only a limited right of user can be granted via licence. 27. In The Modern Law of Trade Marks by Christopher Morcom, Butterworths 1999, it is stated: The concept of distinguishing goods or services of the proprietor from those of others was to be found in the requirements for a mark to be registrable. Essentially, whatever the wording used, a trade mark or a service mark was an indication which enabled the goods or services from a particular source to be indentified and thus distinguished from goods or services from other sources. In adopting a definition of 'trade mark' which simply describes the function in terms of capability of 'distinguishing the goods or services of one undertaking from those of other undertakings' the new law is really saying precisely the same thing. 28. In Gujarat Bottling Co. Ltd. and Others v. Coca Cola Co. and Others [(1995) 5 SCC 545], it was held that licensing of trade mark is governed by common law which is also statutor....
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....on for registration is filed, the same can be opposed. Ordinarily under the law and, as noticed hereinbefore, there can only be one mark, one source or one proprietor. Ordinarily again right to user of a trade mark cannot have two origins. The first respondent herein is a rival trader of the appellant-Company. It did not in law have any right to use the said trade mark, save and except by reason of the terms contained in the MOU or continuous user. It is well-settled that when defences in regard to right of user are set up, the onus would be on the person who has taken the said plea. It is equally well-settled that a person cannot use a mark which would be deceptively similar to that of the registered trade mark. Registration of trade marks is envisaged to remove any confusion in the minds of the consumers. If, thus, goods are sold which are produced from two sources, the same may lead to confusion in the mind of the consumers. In a given situation, it may also amount to fraud on the public. A proprietor of a registered trade mark indisputably has a statutory right thereto. In the event of such use by any person other than the person in whose name the trade mark is registered, he w....
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....se at a newsstand or drug store [Callmann, Unfair Competition Trademarks and Monopolies, (3d ed. 1971)]. The sophistication of buyers, however, does not always assure the absence of confusion [Communications Satellite Corp. Vs. Comcet, Inc., 429 F.2d at 1252]. It is the subliminal confusion apparent in the record as to the relationship, past and present, between the corporate entities and the products that can transcend the competence of even the most sophisticated consumer. Misled into an initial interest, a potential Steinway buyer may satisfy himself that the less expensive Grotrian-Steinweg is at least as good, if not better, than a Steinway. Deception and confusion thus work to appropriate defendant's good will. This confusion, or mistaken beliefs as to the companies' interrelationships, can destroy the value of the trademark which is intended to point to only one company [American Drill Busing Co. v. Rockwell Mfg. Co., 342 F.2d 1922, 52 CCPA 1173 (1965)]. Thus, the mere fact that purchasers may be sophisticated or discriminating is not sufficient to preclude the likelihood of confusion. "Being skilled in their own art does not necessarily preclude their mistaking one ....
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....e the public considers the sign to be similar to the mark and perception of the sign calls to mind the memory of the mark, although the two are not confused (likelihood of association in the strict sense). (Paragraph 16 of the judgment). 29. The court stated that it was therefore necessary to determine "whether Article 4(1)(b) can apply where there is no likelihood of direct or indirect confusion, but only a likelihood of association in the strict sense" (paragraph 17 of the judgment). It concluded: "The terms of the provision itself exclude its application where there is no likelihood of confusion on the part of the public". (paragraph 18 of the judgment). Thus, the court held that "the mere association which the public might make between two trade marks as a result of their analogous semantic content is not in itself a sufficient ground for concluding that there is a likelihood of confusion" within the meaning of Article 4(1)(b)." TRADE MARK AND GOODWILL 35. Traditionally, a trade mark has always been considered a vital and inseparable part of the goodwill of the business. In fact, the sale of a trade mark without the sale of the goodwill to the same buyer is consi....
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.... of the appellant through the said outlets. It was one of the primary business of the partnership firm which was given to the first respondent. Prima facie, therefore, the first respondent could sell only the product of the appellant. The respondents, however, were not restrained from manufacturing spices in their own factory. They were entitled to do so. They started the same under the brand name of 'Swad'. They could even use the same retail outlets for the purpose of promoting their own products but prima facie they could not use the mark registered in the name of the appellant Company. The registration number of trade mark is 447700. Once the appellant had acquired goodwill and reputation thereto, in the event of any infringement to the said right, the remedies provided for in the 1958 Act would be available to it. The terms of the MOU, in our opinion, are clear and unambiguous. It was required to be construed, even if it was obscure to some extent by making attempt to uphold the one which would be in consonance with law and not offend the same. Quality control by a registered trade holder vis-`-vis the one produced by an unregistered one is one of the factors which is ....
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....earned Trial Judge and the High Court that although the first respondent would be at liberty to carry on the business of manufacture of spices, it can use the mark 'Ramdev' only in seven outlets. It evidently in view of the legal position, could do so in respect of the products of the appellant alone, which would be evident from the fact that at the relevant point of time, the respondents were not carrying any such business. The direction of the learned Trial Judge that the respondents should be prevented from using the word "Ramdev Masala" and their label and packing, however, has been over-turned by the High Court on the premise that they are required to observe the statutory requirements under the Prevention of Food Adulteration Act, 1955 as also the Standards of Weights and Measures Act, 1976. NON-OBSTANTE PROVISIONS 39. The non-obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy. A non-obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same. [See ICICI Bank Ltd. v. Sidco Leathers Ltd. & Ors., 2006 (5) SCALE 27] The questi....
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.... products from the said outlets. The parties for the said purpose thought of remaining mutually dependent as it was stipulated that while also competing with each other they would see to it that by action of one, the other is not harmed at least while exporting the materials. It is, thus, not a case where the appellant having taken advantage of the terms of the MOU had resiled therefrom and in that view of the matter the principle of estoppel cannot be said to have any application in the instant case. 42. We are also not in a position to accept the submission of Mr. Nariman that the MOU must be read with the deed of partnership or the deeds of retirement whereby and whereunder the firm 'Ramdev Masala' and 'Ramdev Exports' were permitted to use the word 'Ramdev'.What is registered is a logo wherein the words 'Ramdev' and 'Masala' are prominent. A person may be held to be permitted to carry on business in spices as contradistinguished from the permission to carry on manufacturing goods which are similar to that of the appellant, but in terms of the statutory provisions, the respondents were not legally permitted to sell its products in packa....
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....m of election, and sometimes be based on ordinary principles of estoppel. [See 45 Halsbury's Laws (4th edn.) para 1269] In Indu Shekhar Singh & Ors. v. State of U.P. & Ors. [2006 (5) SCALE 107], this Court held: "They, therefore, exercised their right of option. Once they obtained entry on the basis of election, they cannot be allowed to turn round and contend that the conditions are illegal" SECTIONS 15 AND 17 ISSUE 44. Section 15 of the 1958 Act postulates registration of the whole and a part thereof as separate trademarks. The nature of the trade mark of the appellant has been noticed hereinbefore. There are three elements in the said trade mark, viz., 'Ramdev', 'Masala' and the 'horse'. The deception could be as regard the prominent features of the said trade mark. Section 15 of the 1958 Act, in our considered opinion, is not attracted in the instant case. By reason of the said provision, registration of trade mark in regard to the exclusive use is permissible both in respect of the whole trade mark as also the part thereof separately. Where such separate trade mark in regard to a part of it is applied for, the applicant must satisfy the ....
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....ed and not the name 'Ramdev'. Definition of 'mark' as contained in Section 2(j) of the 1958 Act also includes name, signature, etc. SECTION 29 ISSUE 46. Section 28 of the 1958 Act confers the right of registration whereas Section 29 thereof provides for the remedies for infringement of trade mark. What is needed by way of cause of action for filing a suit of infringement of trade mark is use of a deceptively similar mark which may not be identical. What would be deceptively similar, as defined in Section 2(d) of the 1958 Act, would be a mark if it nearly resembles that other mark as to be likely to deceive or cause confusion. It is, therefore, not a case where the respondents could raise valid defence in terms of Section 29 of the 1958 Act. 47. The right conferred in terms of Section 28 of the 1958 Act although is required to be read with Sections 15 and 17 thereof but it is difficult to accept that each part of the logo was required to be separately registered. Section 28 of the 1958 Act confers an exclusive right of using trade mark to a person who has got the trade mark registered in his name. Such right is, thus, absolute. Sub-section (3) of Section 28 ....
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....aterial benefits under the agreements. We have ourselves also re-scrutinized the evidence on record on this aspect and have found nothing to persuade us to take a contrary view. Furthermore, in this case the agreements had merged in the decree of the Court which is also excepted under Sub-section 2(vi) of Section 17 of the Registration Act, 1908. 49. In re Cadbury Brothers' Application (supra), it is stated: It seems to me manifest that the registration of this trade mark cannot give rise to any rights except a right to the mark as a whole. It cannot give any statutory rights at all in respect of the word "Tudor"; and, that being so, it is inexpedient to place on the register an unnecessary disclaimer, because the effect of so doing is to unsettle the law and give rise to doubts in other cases, where such disclaimers are not inserted. For the self-same reason, this decision is also not applicable. ESSENCE OF PASSING OFF ACTION 50. In a case of this nature, the test for determination of the dispute would be the same where a cause of action for passing off arises. The deceptively similar test, thus, would be applicable herein. The doctrine of passing off is a....
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....ff's mark. In an action for infringement where the defendant's trade mark is identical with the plaintiff's mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion. The test, therefore, is as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing off actions. [See Ruston & Hornsby Ltd. v. The Zamindara Engineering Co., (1969) 2 SCC 727] 52. In Parle Products (P) Ltd. v. J.P. and Co., Mysore [(1972) 1 SCC 618], emphasis was laid on the broad and essential features of the impugned mark holding: ...It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him... Noticing the similarity of the mark in question with that of the impugned mark, it was opined that "if one was not careful enough to note the peculiar features of the wrapper on the plaintiffs' goods, he might easily mistake the defendants' wrapper for the plaintiffs' if shown to him some time after he had seen the plaintiffs'". It wa....
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.... ... Mr. Rahimtoola was not able to cite any authority for the proposition propounded, which I find somewhat startling. The consequences of accepting this proposition would mean that the registered proprietor would be at the mercy of anyone who sells the goods bearing his trade mark. In a situation like the present, where the businesses are overlapping, the trade channels are almost identical and the family background is conspicuous, I am of the view that there would be an inherent likelihood of confusion in the minds of the public that not only that the goods, which emanate from the first defendants, are "Bedrock" goods, but also further that the first defendants' business is somehow intimately connected with the plaintiffs', either as a branch, agency or otherwise. There is also the danger, as rightly emphasized by the plaintiffs, that any act or omission of the first defendants would have deleierious repercussion on the credit, reputation and goodwill of the plaintiffs themselves. For example, if the first defendants were to commit an act of insolvency or do any act which tarnishes their reputation in the market, there is imminent likelihood of people jumping into the ....
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....e to the company through MOU or otherwise. LACHES AND ACQUIESCENCE 56. The plea of acquiescence on the part of the appellant herein has been raised on two counts: (i) The plaintiffs- appellant permitted the respondents to carry on business in the trade name of 'Ramdev Masala". (ii) It is, thus, also not entitled to an order of injunction. The appellant by a registered notice dated 12/15-12-1998 asked the defendant Nos. 1 and 7 that the firm 'Ramdev Masala' had been unauthorisedly using the appellant-company registered trade mark in respect of its product sold and manufactured by them and on the packing materials, labels, boxes, poly pouches. They were called upon to restrain from doing so with immediate effect and destroy the necessary label/ packets of packing materials failing which it was threatened that a legal action would be taken. For determining the said issues, we may notice the following facts. 57. A civil suit was filed by the first respondent in the Ahmedabad City Civil Court wherein a prayer was made that the deed of assignment be declared null and void and the appellant herein be permanently restrained from using the same a....
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....Pvt. Ltd. [(1994) 2 SCC 448], this Court stated: Acquiescence is sitting by, when another is invading the rights and spending money on it. It is a course of conduct inconsistent with the claim for exclusive rights in a trade mark, trade name etc. It implies positive acts; not merely silence or inaction such as is involved in laches. 59. In an infringement of trade mark, delay by itself may not be a ground for refusing to issue injunction as has been observed by Lahoti, J. (as His Lordship then was) in Midas Hygiene Industries (P) Ltd. v. Sudhir Bhatia and Others [(2004) 3 SCC 90] in the following terms: The law on the subject is well settled. In cases of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest. (Emphasis supplied) The defence of acquiescence, thus, would be satisfied when the plaintiff assents to or lay by in relation to the acts of another person and in view of that assent or laying by and conse....
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.... ground of non- user, but it is essential both that the user maintains the connection of the registered proprietor with the goods and that the use of the mark does not become otherwise deceptive. Conversely, registration of a registered user will not save the mark if there ceases to be the relevant connection in the course of trade with the proprietor or the mark otherwise becomes deceptive. [See also Holly Hobbie Trade Mark, (1984) RPC 329.] INJUNCTION ISSUE 63. It is although beyond any doubt or dispute that the defendant had been manufacturing and selling its products; what is sought to be injuncted is using a label which is deceptively similar to that of the plaintiff. Our attention has been drawn to the right of the parties of the second and third part of the MOU to carry out export business in the brand name of 'Ramdev' which, in our opinion, does not advance their case as by reason thereof, the appellant-Company had been also conferred right to carry on the export business in the name of 'Ramdev'. It is also not correct that having regard to the fact that the property situated at Sola having been given in favour of the respondents, they have ac....
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.... a prima facie case. When existence of a prima facie case is established, the court shall consider the other relevant factors, namely, balance of convenience and irreparable injuries. The High Court in its impugned judgment although not directly but indirectly has considered this aspect of the matter when on merit it noticed that the Appellant has raised a dispute as regard payment of an excess amount of Rs.35 crores although according to the Respondent a sum of Rs.132 crores is due to it from the Appellant and the Appellant had been paying the amount for the last two years as per the contract. Conduct of the parties is also a relevant factor. If the parties had been acting in a particular manner for a long time upon interpreting the terms and conditions of the contract, if pending determination of the lis, an order is passed that the parties would continue to do so, the same would not render the decision as an arbitrary one, as was contended by Mr. Rao. Even the Appellant had prayed for adjudication at the hands of the Commission in the same manner. Thus, it itself thought that the final relief would be granted only by the Arbitrator. We also do not appreciate the cond....
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.... cases, it is very hard to avoid doing so, since the better the claimant's case on the likelihood of deception (frequently the major issue) the greater the harm which he is likely to suffer. Accordingly, in appropriate cases, where the state of the evidence permits it, the court may seek to weigh up the merits in deciding whether to grant interim relief. Thus, when a prima facie case is made out and balance of convenience is in favour of the appellant, it may not be necessary to show more than loss of goodwill and reputation to fulfil the condition of irreparable injury. In fact, if the first two pre-requisites are fulfilled, in trade mark actions irreparable loss can be presumed to have taken place. The expression "irreparable injury" in that sense would have established injury which the plaintiff is likely to suffer. 69. In Mahendra & Mahendra Paper Mills Ltd. v. Mahindra & Mahindra Ltd. [(2002) 2 SCC 147], this Court observed: 23. The Bombay High Court in the case of Kirloskar Diesel Recon (P) Ltd. v. Kirloskar Proprietary Ltd. considered the scope of granting injunction in a suit for infringement of a trade mark under Section 106 of the Act by the use of t....
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.... piano as borne out from the object clauses of the memorandums of association of the respondents. The appellants have still to commence their business activities but as mentioned in the memorandums of association of the 1st appellant in each appeal, some of the object clauses therein overlap with the activities of respondents and more particularly of Respondents 6 and 7. APPELLATE COURT'S JURISDICTION TO INTERFERE WITH ORDERS OF THE TRIAL JUDGE 70. We are not oblivious that normally the appellate court would be slow to interfere with the discretionary jurisdiction of the trial court. The grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate courts will usually not interfere with it. However, appellate courts will substitute their discretion if they find that discretion has been exercised arbitrarily, capriciously, perversely, or where the court has ignored settled principles of law regulating the grant or refusal of interlocutory injunctions. This principle has been stated by this court time and time again. [See for example Wander Ltd. v. Antox India P. Ltd (1990) Supp SCC 727, Lakshmikant V. Patel v. ChetanBhai Shah (2002) 3 ....