Professional Documents
Culture Documents
versus
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
the suit, challenging the impugned order of the trial court dated
10.7.2017 by which the trial court has vacated the ex-parte injunction
reputation in the same having used the same for its magazines and
LA CLASSE for its goods being fabric/cloth, and user of its trademark
3.(i) Before I turn to the merits of the case for disposal of the
has been so held by the Supreme Court in its judgment in the case of
“6. It may not be appropriate for any court to hold a mini-trial at the
satge of grant of temporary injunction. As noticed by the Division Bench
that there are two documents which indicated that there was prima facie case
to be investigated. Unless the sale certificate is set aside or declared to be a
nullity, the same has legal validity and force. It cannot be said that no right
could be derived from such certificate. Secondly, when the contesting
respondents were in possession as evidenced by the record of rights, it
cannot be said that such possession is by a trespasser. The claim of the
contesting respondents is their own right. The decisions referred to by the
learned counsel for the appellant are in context of there being no dispute as
to the ownership of the land and the possession was admittedly with a
stranger and hence temporary injunction is not permissible. Therefore, we
are of the view that the Division Bench has very correctly appreiciated the
matter and come to the conclusion in favor of the respondents. In these
circumstances, we dismiss these appeals. We may notice thate the time-
bound directions issued by the Division Bench will have to be adhered to
strictly by the parties concerned and the suits should be disposed of at an
early date but not later than six months from the date of communication of
this order.”
CPC does not go into merits in so much in depth that it would amount
the parties on the basis of the triple factors of prima facie case,
so much into the depth of the matter and conducts a mini-trial then
surely one or the other party is likely to be prejudiced at the final stage
as the subject suit, a final relief is granted, and therefore the court
convenience and irreparable injury, and which factors come into play
respondent/defendant.
using its trademark for Vogue Cafes and which cafes advises start-ups
para 14 of the plaint and which are for magazines, publications and
fabric/cloth.
off. With respect to each of these headings the trial court has arrived
trial court has held that there is no case of infringement which is made
out as the fields of user of the trademark of the respective parties are
heading the trial court has further held that the trade channels of the
respective parties are completely different. Trial court has then held
observed that marks have to be read as a whole and once both the
marks are seen as a whole it cannot be held that there will arise
generic/descriptive word, trial court has held that the word „VOGUE‟
present case. Trial court has finally held that the appellant/plaintiff
has also failed to make out a case of passing off on account of lack of
identity between the goods and services of the respective parties and
courts, because for the grant of the interim relief, the suit itself
demolition etc etc. There are however other types of cases where
infructuous but also the fact that though the plaintiff has made out a
prima facie case, however even the defendant has made out a prima
therefore both the parties have comparable and arguable cases, then, in
shown the door without his case being tried and decided at the stage of
final arguments. Also, once both the parties have arguable cases, then,
the suit of the plaintiff does not become infructuous and in case the
more or less identical/same, and also that the goods of the respective
arguments, and then even after hearing complete arguments, I did put
decision in the suit and which will include time bound directions for
under:-
upon Sub-Sections (2) and (4) of Section 29 of the Trade Marks Act to
Marks Act will come into play. The provision of Sub-Section (4) of
Section 29 of the Trade Marks Act is relied upon to argue the aspect of
of the appellant/plaintiff.
because the Sub-Sections (a), (b) and (c) of Sub-Section (2) of Section
29 of the Trade Marks Act specifically use the word „and‟, i.e. in each
of the Sub-Sections (a), (b) and (c) the identity or similarity of the
trademark with the goods and services which are compared of the
trademark VOGUE and those very persons of the general public also
some will purchase both the magazines and also cloth/fabric, but, only
for this reason in itself it cannot be argued that there necessarily exists
being the same for the purposes of same products. Putting it in other
separate products i.e a magazine on the one hand and cloth on the
other hand and surely therefore there would be common persons who
doubtful that only for this reason the trade channels and consumers of
the two parties can be said to be „common‟ as per the parlance of IPR
will result in some common public and common consumers who will
read magazines as also buy the products which are endorsed in the
that any final decision on such issues would be taken at the stage of
final judgment in the suit and after both the parties have led evidences
stage, without trial being held, it is not possible to give benefit of Sub-
the Trade Marks Act seeking relief by averring with respect to dilution
use its trademark in cases where even the goods and services of the
the Trade Marks Act, however, at the cost of repition this Court
observes that we are today only at the stage of interim injunction and
cases, and arguable cases do exists of both the parties in this case, in
the nature of decreeing of the suit itself without evidence being led in
Section 29 of the Trade Marks Act are factual in nature, and all of
conscience of the Court after trial i.e evidence is led by both the
this Court cannot come to a final finding in the sense of holding that
interim injunction can be claimed for the higher step right of passing
15. I would like to observe at this stage that the trial court, in
my opinion, has possibly not rightly decided some of the issues under
that are not in accordance with the facts of the case as also the law as
contained in the impugned order, or even this judgment for that matter
the suit, and the finality to the issues between the parties in the suit,
and some of which were the subject matter of the impugned judgment
the impugned judgment, and all these issues will be finally decided at
in the facts of the present case ought to be only decided after trial is
clear case of passing off, and that the High Court of Bombay has
in IPR cases. Also, the judgments of other courts, including the High
and not binding effect on this Court, because binding effect on this
Court would only have been if there was a judgment of this Court or
of the Supreme Court, and which is not the case. I am, therefore, not
parties, inasmuch as, going into too much depth would amount to
this regard it is stated that I have already observed above that nothing
in the suit.
only sold as a product in itself for a price in the market, but are only
stage, therefore, this Court would not like to interfere in the publishing
appeal and the same is hereby dismissed. Parties to bear their own
costs.