$~27
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IN THE
HIGH COURT OF DELHI AT NEW DELHI
+
FAO 30/2018 & CAV 48/2018, CM APPL. 2669/2018,
CM APPL.
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2670/2018
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M/S
FLIPKART INDIA PRIVATE LIMITED
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..... Appellant
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Through:Mr.
Salman Khurshid and Mr. Dayan
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Krishnan,
Senior Advocates with Mr. Saikrishna
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Rajagopal, Mr.
Sidharth Chopra, Mr.
Saurabh
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Srivastava, Mr. NitinSharma,
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Ms.
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Shilpa
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Gupta, Mr.
Ranjeet Singh, Ms.
Aakashi Lodha,
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Ms.
Roshni W.Anand, Ms.
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Gitanajali
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Kaur,
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Mr. Vikramaditya Singh
and Ms. A.
Rehman,
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Advocates.
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Versus
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M/S
MARC ENTERPRISES PVT LTD.
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..... Respondent
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Through: Mr. S.K. Bansal, Mr. Ajay Amitabh Suman, Mr. Pankaj Kumar and
Mr. Kapil Kumar Giri, Advocates.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
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%
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O R D E R
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22.01.2018
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CAV.
No.48/2018
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1.
Since the learned counsel for the
caveator has put appearance, the caveat stands discharged.
C.M.No.2670/2018 (for exemption)
2.
Allowed, subject to all just exceptions.
3.
The application stands disposed off.
FAO 30/2018 &
C.M.No.2669/2018 (for stay)
4.
Issue notice.
5.
Mr. S.K. Bansal, the learned
counsel for the respondent accepts notice.
6.
The appellant is aggrieved by an
ex-parte order dated 18.01.2018 restraining it from using the trademark ‘MARQ’
for selling electronic goods such as televisions, washing machines and
microwave ovens. The appellant sells these goods primarily through the internet
and advertises its goods in print media as well.
7.
The learned Senior Counsel for the appellant
submits that:
(i)
although the appellant was
represented by counsel before the Trial Court on the day the impugned order was
passed, despite a request that a copy of the plaint be supplied to the
appellant and it be heard, the request went unheeded and the impugned
injunction was passed;
(ii)
the suit for injunction was first
instituted by the plaintiff on 11.01.2018, it was then renotified by the court
a week later, on 18.01.2018; this itself shows that there was no pressing
urgency that the appellant could not have been accommodated even for a day or
be heard the very day after a copy of the plaint had been given to it;
(iii)
the trademark of the appellant is
distinct from that of the respondent particularly in its font-style and design;
that the products being manufactured and/or sold by the appellant are not even
manufactured by the respondent;
(iv)
besides the user of the said
products would ordinarily be persons who would discern the product on the basis
of the distinct visual mark, hence there could be no confusion in their mind
about the identity and origin of the
products;
(iv)
the respondent does not have
exclusive right to use of the trademark ‘MARC’ because the same mark is being
used by other persons all over India as well as in the United States of
America. In support of his contention he refers to documents on the record
which are print-outs from the websearch of the Trade Mark Register.
8.
Mr. S.K. Bansal, the learned
counsel for the respondent states that the latter has registration of the
trademark ‘MARC’ in 5 classes, while the appellant has none. He contends that,
therefore, the statutory protection would be available to the respondent with
all its force and an injunction against passing-off too would be available
against sale of goods using phonetically similar trademark, otherwise the
respondent’s interests in the trademark would be irreparably prejudiced. He
submits that it is another matter that the appellant has applied for
registration of their mark ‘MARQ’ in July, 2017, which was published in the
Trade Mark Journal in August, 2017, as the process of registration is a long
drawn out process.
9.
The learned counsel for the
appellant submits that their present concern is that in view of the impugned
order the inventory of the aforesaid goods which are planned to be disposed off
in the ensuing Republic Day weekend sale has been stalled. Therefore, the
appellant seeks time till 30.01.2018 to dispose of the same with the trademark ‘MARQ’
printed on them.
10.
Mr. Bansal had sought a passover
to obtain instructions and upon having been instructed, he submits that subject
to the appellant rendering accounts, the respondent would have no objection to
the disposal of the said inventory.
10.
In view of the above, by consent, the following
order is passed:
(i)
The appellant is permitted to
dispose off its inventory of the aforesaid goods (as mentioned in para 6 &
9) till 30.01.2018 under the trademark ‘MARQ’ and advertise their sale through
the print and electronic media;
(ii) This concession is only till 30.01.2018. The impugned order is modified
only to this extent.
11.
Reply be filed before the next date of hearing.
12.
At this stage, the learned
counsel for the respondent states that he would not be averse to the
possibility of an amicable settlement of the lis, being explored. The learned
counsel for the parties submit that, upon being instructed, they will discuss
the matter amongst themselves and if required the parties too shall sit
together and would do so on or before 31.01.2018.
13.
List on 01.02.2018.
14.
Copy of the order be given dasti to the learned counsel for the
parties under the signature of the Court Master.
NAJMI WAZIRI, J
JANUARY 22, 2018
RW
