Neha Overseas Vs Khushi Impex

DATE OF JUDGEMENT: 20.06.2022
CASE NO: COM IP SUIT NO.47 OF 2020
CASE TITLE: Neha Overseas Vs Khushi Impex
NAME OF HON'BLE COURT: High Court of Judicature at Mumbai
NAME OF HON'BLE JUDGE: R.I.Chagla

Brief Note on the case: 1. Application has been filed by the Defendant seeking release of seized goods and seeking vacation of ex parte stay of injunction order dated 27.08.2020. Para 2

2.At the earlier occasion , the Defendant alleged that as cancellation petition has been filed before the Trademark registry in the year 04.03.2020, the suit proceeding is liable to be stayed under Section 124 of Trademarks Act 1999 and accordingly the suit was stayed vide order dated 06.07.2021. Para 3

3.The Plaintiff opposed that ex-parte order was passed on 27.08.2020. While present application seeking vacation of stay was filed in the year 2022, after lapse of almost 2 years. There is delay in filing present application seeking vacation of ex-parte injunction. Para 5.

4.The Hon'ble Court agreed that there was considerable delay in filing the present application, seeking vacation of ex-parte injunction order. Para 7

5.Merely pendency of cancellation petition before the Registrar of Trademark, is not a ground for seeking vacation of stay. Para 11.

6.The Registrar has no jurisdiction to decide the issue of infringement and passing off. Para 12

7.The court rejected the application of the Defendant seeking vacation of ex-parte stay and releasing of seized goods after observing dishonesty on the part of Defendant in adoption of the impugned Trademark and also there was delay of 2 years in filing the application after passing of ex-parte stay. Para 9,13.

Ajay Amitabh Suman, IPR Advocate,
Hon’ble Delhi High Court,
ajayamitabh7@gmail.com,
9990389539