Himalaya Wellness Company Vs Wipro Enterprises Pvt.Ltd.

Date of Judgment: 12.07.2023

Case No: CS Comm 118 of 2023

Neutral Citation No: 2023:DHC:4685

Name of Hon'ble Court: Hon'ble High Court of Delhi

Name of Hon'ble Judge: Amit Bansal, H.J.

Case Title: Himalaya Wellness Company Vs. Wipro Enterprises Pvt. Ltd.

INTRODUCTION:

In the realm of trademark law, disputes often arise when two parties claim ownership or exclusive rights over similar trademarks for different classes of products. This article analyses a recent case where the Plaintiff, who held a class 05 trademark for the brand EVECARE, filed a suit against the Defendant, who possessed a class 03 trademark for the same name. The pivotal question in this case was whether the Plaintiff could be granted an injunction against the Defendant's products, even though they fell under different classes.

THE BACK GROUND:

The Plaintiff had registered the EVECARE trademark in class 05 in 1997. The mark was used for an Ayurvedic proprietary medicine, specifically a uterine tonic for women. On the other hand, the Defendant also held a registration for the EVECARE trademark, but in class 03, which covered an intimate wash as a cosmetic item.

THE JUDGEMENT:

Relief of Infringement was declined as the Defendant was also having Trademark Registration. However Relief of passing off was granted as the Plaintiff was held to be prior adopter and user of the subject matter Trademark EVECARE.

RELEIF OF INFRINGEMENT NOT MAINTAINABLE AGAINST ANOTHER REGISTERED PROPRIETOR:

Plaintiff adopted the Trademark EVECARE in the year 1997 and also hold registration in class 05. While defendant hold registration of Trademark EVECARE in class 03 which was granted in class 03. The Defendant was also registered Proprietor of Trademark EVECARE in class 03. Hence by virtue of operation of Section 28 (3) of Trademarks Act 1999, the Suit for Infringement was not held to be maintainable. 

THOUGH PLAINTIFF FAILED IN ACTION OF INFRINGEMENT, HOWEVER PASSING OFF ACTION SUCCEEDED:

However Plaintiff succeeded in passing off action on the ground of prior use and tremendous goodwill and reputation. Plaintiff was prior user of Trademark EVECARE in relation to Ayurvedic proprietary medicine used as uterine tonic for woman since the year 1997. While defendant launched identical trademark EVECARE in the year 2021 in relation to intimate wash as cosmetic item.

TRADEMARK CLASSIFICATION IS NOT THE RELEVANT CRITERION FOR DECIDING CONFUSION:

The Court did not grant any relief to the Defendant on the ground that competing products of parties were falling in different class. Instead, the Court looked into the nature and use of competing products of the parties. Goods of parties were held to be of similar in nature as both products were held to be targeted towards similar function. The function of both of the products were in relation to menstrual and reproductive health of women. Merely because of goods of parties falls in different class i.e. in class 03 and 05, this does not make the competing goods different in nature. Trademark Classification is not determinative of confusion.

Defendant's Products was held to be similar in nature even though it falls in the category of cosmetics while plaintiff's product falls into the category of ayurvedic medicine. Products of both parties are directed towards improving woman's health. Both of the Products are sold through same trade channel. Hence the same were held to be allied and cognate in nature resulting in possibility of confusion and deception in market.

PRIOR TRADEMARK SEARCH TAKEN IN DIFFERENT CLASS IRRELEVANT:

Prior to adoption of the subject matter trademark, the Defendant took search report only in class 03 only. This will not absolve the defendant. Though the product of the Plaintiff was in relation to Ayurvedic medicinal preparation, still on simple search on Google , the Defendant could have found the presence of plaintiff's Trademark. Even the Defendant's explanation does not appear to be convincing.

User of Defendant was recent in nature. On the contrary , the Plaintiff was having user of subject matter trademark since more than 2 decades. The Plaintiff was also having tremendous goodwill and reputation. In view of the above , injunction was granted to the Plaintiff in relation to passing off action.

THE CONCLUDING NOTE:

This case presents an important legal precedent highlighting the fact that classification alone cannot shield a defendant from claims of trademark infringement or passing off. Although classification plays a significant role in determining the scope and applicability of a trademark in trade and commerce, it does not limit the rights of the trademark owner to seek relief against infringing products in different classes. The court's decision underscores the fundamental principle of trademark law, which is to protect consumers from confusion or deception in the market. Consequently, trademarks should be evaluated based on their impact on consumer perception rather than the classification of goods or services.

Advocate Ajay Amitabh Suman

IP ADJUTOR

Patent and Trademark Attorney

ajayamitabhsuman@gmail.com

9990389539

DISCLAIMER:

Information contained herein is being shared in the public Interest. The same should not be treated as substitute for legal advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the facts and law involved herein.

Pepsico India Holdings Pvt. Ld. Vs Kavitha Kuruganti

Date of Judgment: 05-07-2023
Case No: C.A. (Comm.IPD-PV) 02 of 2022
Neutral Citation No: 2023:DHC:4460
Name of Hon'ble Court: Hon'ble High Court of Delhi
Name of Hon'ble Judge: Navin Chawla, H.J.
Case Title: Pepsico India Holdings Pvt. Ld. Vs Kavitha Kuruganti

INTRODUCTION:

The Plant Varieties and Farmers' Rights Act 2001 is a significant legislation enacted by the Indian Parliament to address the rights and interests of both farmers and breeders.

This act aims to strike a delicate balance between protecting the rights of breeders while ensuring the preservation of traditional farming practices and the welfare of farmers.

An essential aspect of this act relates to the date of the first sale of a plant variety during the registration process. In this article, we will delve into the significance of the first sale date and its implications under the Plant Varieties and Farmers' Rights Act 2001.

THE APPEAL:
The Appeal has been preferred under Section 56 of Protection Plant Varities and Farmers Right Act 2001 against Order dated 03.12.2021 whereby Appellant's registration for Plant variety - FL 2027 for Potato was revoked.

THE REASONS FOR REVOCATION:
Here are the fundamental reasons which made the authority to revoke the registration.

The Appellant has provided incorrect information about first sale of subject matter product.

No chain of assignment has been produced on record which shows that right in the said variety has been transferred from the original breeder to the Appellant.

Grant of Registration is not in public interest.

THE JUDGEMENT:
Appeal was dismissed.

THE REASONING:
Section 34 a of the Act provides that protection granted to the breeder may be revoked in case it is found that the breeder has given incorrect information.

In the case at hand, the breeder has applied the subject plant variety and while doing so the same has given incorrect information about the date of first sale of the subject matter plant variety.

The subject matter Plant variety was wrongly applied for as new variety. It ought to have been applied as extant variety.

Extant Variety referes to those variety , which is avaialble in India. Different criterion has been provided under the act for new variety and extant Variety.

For the purpose of new variety, it must conforms to criteria of novelty, distinctiveness, uniformity and stability. The criteria for Novelty becomes crucial in relation to new variety.

While for extant variety, the criteria is distinctiveness, uniformity and stability. If a plant variety has not been sold for a period of 15 years. , at the date of filing of the application for registration, the same has to be registered as extant variety. This is the reason why , the date of first sale of plant variety becomes crucial for applying for plaint variety.

Even the Applicant has filed incomplete form for the purpose of establishing it's right from alleged assignment. These are important things , which Applicant did not do deligently.

While rejecting the Appeal, the Court also observed that any public spirited person does have the locus to challenge such registration.

THE CONCLUDING NOTE:
The Plant Varieties and Farmers' Rights Act 2001 is a legislation that recognizes the contributions of both farmers and breeders in agricultural development. The inclusion of the first sale date provision in the act is crucial in striking a balance between the interests of breeders and the welfare of farmers.

The date of first sale of a plant variety holds significant importance in the registration process. If a variety has not been sold for a continuous period of 15 years from the date of filing the application for registration, it is classified as an extant variety and can be registered accordingly. This provision aims to encourage the preservation and recognition of traditional and locally adapted varieties that might have been overlooked due to commercial interests.

By adhering to these criteria, plant breeders, regulatory authorities, and farmers can collectively contribute to the advancement of agriculture and horticulture, promoting diversity, innovation, and sustainability in plant breeding and cultivation practices.


Advocate Ajay Amitabh Suman
IP ADJUTOR
Patent and Trademark Attorney
ajayamitabhsuman@gmail.com
9990389539

DISCLAIMER

Information contained herein is being shared in the public Interest. The same should not be treated as substitute for legal advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the facts and law involved herein.

X Corporation Vs Union of India and Ors

Date of Judgment: 30.06.2023
Case No:Writ Petition 13710 of 2022
Neutral Citation No: NA
Name of Hon'ble Court: Hon'ble High Court of Karnataka at Bengaluru
Name of Hon'ble Judge: Krishna S Dixit, H.J.
Case Title: X Corporation Vs Union of India and Ors

Article 226 and 227 of the Constitution of India grant the power of writ jurisdiction to the High Courts in the country. This power allows the courts to issue writs for the enforcement of fundamental rights and for other purposes.

While these articles empower Indian legal entities and citizens to seek redress for violations of their fundamental rights, the question arises as to whether a foreign entity can invoke Article 226 and 227. In this article, we will explore this issue in view of a recent judgment pronounced by the Honorable High Court of Karnataka at Bengaluru.

THE PETITIONER:
The Petitoner was a company duly incorporated under the laws of United States of America.

THE PETITION:
The Petition was filed by the Petitioner before the Hon'ble High Court of Karnataka at Bengaluru , invoking Article 226 and 227 of Constitution of India, seeking to quash the blocking order issued by Respondents.

THE BLOCKING ORDER:
The Respondents ordered for blocking of user accounts from which offending tweets came.

THE GREIVANCE OF PETITIONER:
The Petitioner contended that blcking order has to be URLs specific. Whole account of a user can not be blocked in the apprehension of offending contents, which may come from that account.

THE LOCUS OF FOREIGN ENTITY:
While rebutting the contention of Petitioner, the Respondents challenged the locus of Petitioner , bening a foreign entity , to invoke Article 226 and 227 of Constitution of India.

ANSWER BY THE COURT:
Invokation of Writ Jurisdiction is limited only in cases of violation of Fundamental rights but also  includes cases where statutory rights are violated.

A corporation being a incorporated body, may not be entitled for protection under Article 19 of Contition of India, however the same is entitled to protection under Article 14 of Constitution of India.

Article 226 of Constitution of India uses the word, "by any person". The term "person"has not been defined in Construction of India.

As per the provision of General Clauses Act 1867, the term "person" includes any corporation also.
Article 226 of Constitution of India uses the term" for any purpose. Hence Article 226 of Constitution of India can be invoked for infringement of Statutory Rights also, besides, violation of Fundamental rights.

Thus a foreign entity equally can invoke Article 226 and 227 of Constitution of India in cases of violation of its stqtutory rights. The Locus of Petitioner, being a foreign entity, was held for invoking writ jurisdiction.

However the High court also held that blocking order of violating user accounts was right as the blocking order can also be passed against such apprended offending tweets that may come from such accounts.

THE CONCLUDING NOTE:

The court emphasized that the fundamental rights enshrined in the Constitution are universal in nature and apply to everyone within Indian jurisdiction. It further noted that restricting the application of Article 226 and 227 solely to Indian legal entities and citizens would undermine the purpose and intent of these provisions.

The court ruled that a foreign entity, if it can establish a violation of its fundamental rights within the jurisdiction of a High Court, can indeed invoke Article 226 and 227 for appropriate remedies. The court reasoned that such a foreign entity, like any other person within the territory of India, is entitled to the protection of fundamental rights guaranteed by the Constitution.

The judgment of the Honorable High Court of Karnataka at Bengaluru has far-reaching implications. It reaffirms the inclusive nature of fundamental rights under the Constitution and recognizes that the protection of these rights extends to foreign entities operating within India. The ruling aligns with the principles of equality and non-discrimination enshrined in the Constitution.

This judgment provides clarity and establishes a precedent for foreign entities seeking legal remedies for violations of their fundamental rights. It promotes investor confidence and reinforces India's commitment to the rule of law and protection of human rights.

Advocate Ajay Amitabh Suman
IP ADJUTOR
Patent and Trademark Attorney
ajayamitabhsuman@gmail.com
9990389539

DISCLAIMER

Information contained herein is being shared in the public Interest. The same should not be treated as substitute for legal advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the facts and law involved herein.

=====

Kamdhenu Limited Vs The Registrar of Trademark.

The Requirement of affidavit in support of  documents before Registrar of Trade Mark

In the realm of intellectual property rights, trademarks play a vital role in protecting the distinct identity and reputation of businesses. The process of establishing a trademark as "well known" is essential to reinforce its strength and prevent infringement. When seeking a declaration of a well-known trademark, it is crucial to provide comprehensive evidence to support the claim.

In proceedings before the Registrar of Trademarks, evidence is the cornerstone for establishing the reputation and distinctiveness of a trademark. Evidence substantiates the claims made by the petitioner and allows the tribunal to evaluate the strength of the case. The purpose of filing evidence is to provide a factual basis for the arguments presented and demonstrate the widespread recognition and reputation enjoyed by the trademark in question.

Evidence can take various forms, including market surveys, consumer feedback, advertising expenditure, media coverage, sales figures, and other relevant documentation. By presenting this evidence, the petitioner aims to convince the tribunal that the trademark has acquired a high level of recognition, transcending its specific industry or geographical boundaries.

Recently, the issue of whether the tribunal can reject documents filed by the petitioner solely on the ground of an absent affidavit in support was examined by the Hon'ble High Court of Delhi. In a notable judgment, the court shed light on the matter and provided guidance to the Registrar of Trademarks in handling such cases.

This article examines the necessity of filing evidence in support of documents during proceedings before the Registrar of Trademarks, and explores the question of whether the tribunal can reject filed documents solely based on the absence of an affidavit in support.

Date of Judgment: 06.07.2023
Case No:CA Comm IPD TM 66 of 2021
Neutral Citation No: NA
Name of Hon'ble Court: Hon'ble High Court of Delhi
Name of Hon'ble Judge: Prathiba M Singh, H.J.
Case Title: Kamdhenu Limited Vs The Registrar of Trademark.

THE SUBJECT MATTER PETITION:

The Petitioner filed petition under form TM M seeking declaration of Trademark KAMDHENU as a well known Trademark.

THE IMPUGNED ORDER:

Vide impugned Order dated 23.04.2019 passed by the Ld. Registrar of Trademark, the Petition seeking declaration of Trademark KAMDHENU as a well known Trademark was rejected on the ground that the Petitioner has not filed any affidavit in support of evidence.

THE JUDGEMENT:

The Hon'ble High Court of Delhi was pleased to set  order the order passed by the Registrar of Trademark and the Petitioner was granted an opportunity to file affidavit in support of the Petition. The Registrar of Trademark was directed to hear the subject matter Petition afresh.

THE REASONING:

As per the provisions of form TM M , the Petitioner is required to file the statement of case along with evidence and documents in support of petition seeking declaration of well known Trademark.

While adjudication of such petition, the Registrar of Trademark is required see if all conditions laid under the provisions of Action 11 (6) and (7) of Trademark Act 1999 has been met out or not?

The petition seeking declaration of well known trademark is guided by the provisions of Rule 124 of Trademarks Rule 2017. This provision mentions only evidence and documents. It nowhere mentions that while filing the evidence in support of this petition, any affidavit is mandatory required to be filed.

Though while adjudication of petition seeking declaration of well known Trademark, affidavit in support of documents in required to be filed, however Section 129 of Trademarks Act 1999 also provides that evidence may be oral evidence or evidence by way of affidavit.

Section 3 of Indian Evidence Act includes both the documentary evidence as well as oral evidence. Thus merely filing of evidence by way of affidavit will not be suffice in case no documents in support thereof are filed.

On the other hands documents filed without evidence by way of affidavit would।be suffice to support the case of Petitioner. Hence it can can not be said that evidence by way of affidavit is mandatorily required to be filed.

In view of the above , evidence in support of affidavit is not mandatorily required to be filed in a proceeding before Registrar of Trademark for declaration of well known Trademark:

THE CONCLUDING NOTE:

An affidavit in support of the documents is a legal declaration made under oath, confirming the authenticity and veracity of the evidence provided. It serves as a statement of truth and adds credibility to the supporting documents filed by the petitioner. Traditionally, affidavits have been considered an essential component of the evidence-gathering process, ensuring the accuracy and reliability of the information presented.

The Hon'ble High Court of Delhi, in its judgment, held that the absence of an affidavit in support should not automatically lead to the rejection of the filed documents. The court emphasized that the objective of requiring an affidavit is to ensure the credibility of the evidence, and it should not be used as a mere technicality to dismiss the petitioner's claim. Instead, the court suggested adopting a more liberal approach and allowing the petitioner an opportunity to rectify the omission by filing the affidavit subsequently.

The court further highlighted that the tribunal should focus on the substance and merit of the evidence presented, rather than relying solely on procedural irregularities. The overall purpose of the proceedings is to determine the well-known status of a trademark based on its reputation and recognition, and this objective should not be undermined by procedural technicalities.

In a proceeding for declaration of well known Trademark before the Registrar of Trademark, what is mandatorily required , is documents in support of the Petition , and not the evidence by way of affidavit. The Registrar can not reject the Petition merely on the ground that affidavit in support of documents have not been filed.

Advocate Ajay Amitabh Suman
IP ADJUTOR
Patent and Trademark Attorney
ajayamitabhsuman@gmail.com
9990389539

DISCLAIMER

Information contained herein is being shared in the public Interest. The same should not be treated as substitute for legal advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the facts and law involved herein.

TV 18 Broad Cast Limited Vs Benett Coleman and Company Limited

========

Date of Judgment: 04.07.2023

Case No: CS Comm 279 of 2023

Neutral Citation No: 2023:DHC:4352

Name of Hon'ble Court: Hon'ble High Court of Delhi

Name of Hon'ble Judge: Amit Bansal, H.J.

Case Title: TV 18 Broad Cast Limited Vs Benett Coleman and Company Limited

The Intellectual Property Rights are subject to certain limitations to these rights, particularly when it comes to generic and non-distinctive words. This article will delve into one Judgment delivered by Hon'ble High Court of Delhi wherein interim injunction was refused on the ground that the term BHAIYAJI is generic, common to trade and non distinctive in nature.

THE SUBJECT MATTER SUIT:

The Plaintiff filed the subject matter Suit on the basis of their ownership in Television Show namely भैयाजी कहिन.

THE PLAINTIFF'S TRADEMARK REGISTRATION:

Plaintiff also claimed to be registered Proprietor of the trademark भैयाजी कहिन since 2016, while the same has aired more than 1200 episodes of the afore mentioned program भैयाजी कहिन since 2016.

THE ACTIVITIES OF DEFENDANT:

The suit was filed when the Plaintiff, in the year January 2022 became aware of this fact that the Defendant was in the process of launching a show titled as भैयाजी सुपरहिट.

THE JUDGEMENT:

The Hon'ble High Court of Delhi was pleased not to grant any relief of temporary injunction.

THE REASONS.

Plaintiff was having Trademark registration in class 38 without disclaimer condition and in class 41 with disclaimer. Relevant class for the subject matter Suit is class 41. Hence Class 38 registration would be of no help to the Plaintiff.

The Plaintiff can not have exclusive right over the word BHAIYAJI which is common in use in UP and BIHAR, which means brother and hence is non distinctive in character.

The Defendant has also filed various documents on record showing that there various Television Program used by various Television Channels comprising the word BHAIYAJI, evidencing the same to be common in trade

The Hon'ble Court further observed that word BHAIYAJI is generic in nature and no exclusivity can be claimed by the Plaintiff in view of Section 17 of Trademarks Act 1999 also.

One more important aspect of the matter was that in reply to examination report, the Plaintiff took the stand that it's trademark भैयाजी कहिन इस different from भैयाजी ऐसा क्यों. Now plaintiff can not be allowed Aprobate and reprobate and can asserted Trademark भैयाजी सुपरहिट of the Defendant is similar to Plaintiff's Trademark भैयाजी कहिन.

Even format of both the shows are quite different. Hence issue of passing off also would not arise.

THE CONCLUDING NOTE:

Trademark law seeks to promote fair competition by encouraging market participants to develop distinctive marks that differentiate their goods or services from those of their competitors.

The refusal to grant an injunction for the "BHAIYAJI" trademark aligns with this objective, as it prevents one party from monopolizing a generic and commonly used term, allowing others to freely compete in the marketplace.

This decision promotes a level playing field and ensures that consumers have access to a variety of choices when making purchasing decisions.

The Delhi High Court's refusal to grant an injunction for the trademark "BHAIYAJI" was a sound and justifiable decision. The mark was rightly deemed generic, common, and lacking distinctive character, rendering it ineligible for trademark protection.

The court's reasoning was based on the fact that "Bhaiyaji" is a term commonly used in India to refer to elder brothers from the Hindi-speaking regions of the country. The combination of these elements results in a mark that lacks the necessary distinctiveness to function as a trademark.

DISCLAIMER

Information contained herein is being shared in the public Interest. The same should not be treated as substitute for legal advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the facts and law involved herein.

Advocate Ajay Amitabh Suman
IP ADJUTOR
Patent and Trademark Attorney
ajayamitabhsuman@gmail.com
9990389539

Vijay Kumar Varshneya Vs Long Last Power Products Limited and another

Bar to Take on Record additional document is not absolute in Commercial Suits.

Date of Judgment: 03.07.2023
Case No: CM M IPD 1 of 2023
Neutral Citation No: 2023:DHC:4356
Name of Hon'ble Court: Hon'ble High Court of Delhi
Name of Hon'ble Judge: Sanjeev Narula , H.J.
Case Title: Vijay Kumar Varshneya Vs Long Last Power Products Limited and another

In a recent landmark judgment reported as 2021 SCC Online SC 734 Sudhir Kumar Vs Vinay Kumar GB, the Hon'ble Supreme Court of India addressed the issue of taking additional documents on record.

The central question before the court was whether the provisions of the Commercial Courts Act impose an absolute bar on admitting additional judgments as evidence. 

The judgment not only delves into the specific case at hand but also provides guidance on the interpretation and scope of the relevant provisions of the Commercial Courts Act. 

In light of this judgment, the Hon'ble High Court of Delhi , while exercising the revisionary jurisdiction, has examined and interpreted the scope of the commercial court to take on record additional documents.

THE SUBJECT MATTER PETITION:

Subject Matter Petition was filed by the Petitioner under Article 227 of Constitution of India.

THE CONTESTING PARTIES:

Petitioner was the Plaintiff while Respondent was Defendant in subject matter Suit.

THE ORDER IMPUGNED:

The Petitioner assailed the impugned Judgment dated 02.08.2022 passed by the LD. where by the LD. Trial Court refused to take on record the additional documents filed by the Petitioner.

THE REASONS GIVEN BY THE PETITIONER FOR TAKING ON RECORD ADDITIONAL DOCUMENTS:T

he Petitioner explained that the additional documents could not be filed at the earlier occasion as the same were located in a different premises under lockdown due to the Covid-19 pandemic and  the technical staff not being available to retrieve the same, making them inaccessible until after the filing of the suit. Because of the adore said reasons, the Petitioner explained that the subject matter additional documents could not be filed.

THE JUDGEMENT IN THIS PETITION.

The Present Petition was allowed and additional documents of the Petitioner were ordered to be  taken on record.

THE REASONING:

Considering the unprecedented challenges posed by the Covid-19 pandemic, it is imperative for this Court to adopt a flexible approach rather than a strict interpretation as has been done by the Ld. Trial Court  in the present case.

The provision of  Order XI Rule 1(5) of Commercial Court Act 2015 does establish strict boundaries. However, given the circumstances, the explanation provided by the Petitioner justifies the delayed submission of additional document.

What law presupposes is that a "dual requirement" on the plaintiff, mandating both the disclosure and filing of documents along with the plaint. 

This requirement explicitly prohibits the plaintiff from relying on documents that were not disclosed along with the plaint. 

Hence if a document falls within the plaintiff's power, possession, control, or custody, it must not only be disclosed but also filed along with the plaint.

However in the case at hand, the Ld. Trial Court  proceedee under the assumption that the Petitioner did not make any disclosure regarding the additional documents. 

This assumption disregards the relevance of the reason for non-filing, as the focus is solely on the absence of disclosure by the Petitioner.

Nevertheless, it is crucial to acknowledge that the lawsuit is still in its early stages, with issues yet to be framed, and the Petitioner's interim injunction application pending adjudication.

The principle that "procedure is the handmaid of justice" should guide our deliberations. While the purpose of Order XI of the CPC is to expedite commercial proceedings, it should not be interpreted in a way that obstructs the pursuit of justice or allows one party to win based solely on technical grounds before a thorough trial.

The Court ought to have allowed the filing of additional documents in cases where issues had not yet been framed. More over the additional documents are also relevant to determine the issue of prior as disputed in the Suit.

While dealing with the scope of Supervisory Jurisdiction under Article 227 of Constitution of India, the Court observed that supervisory role aims to ensure the correct application of the law, uphold justice, and prevent any miscarriage of justice. 

In the given case, it was evident that the Trial Court's perspective contains a clear error, which provides appropriate situation to exercise its supervisory jurisdiction under Article 227 of the Constitution of India.

DISCLAIMER

Information contained herein is being shared in the public Interest. The same should not be treated as substitute for legal advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the facts and law involved herein.

Advocate Ajay Amitabh Suman
IP ADJUTOR
Patent and Trademark Attorney
ajayamitabhsuman@gmail.com
9990389539

#IP_Adjutor #Trademark #Copyright #Design_infringement #Patent_infringement #IPR #Intellectualpropertyright #Iprupdate #Iprnews #Iprblog #Legalblog #law #legal
=====

Jayson Industries Vs Crown Craft India

Date of Judgment: 03.07.2023
Case No: CS Comm 580 of 2022
Neutral Citation No: 2023:DHC:,4343
Name of Hon'ble Court: Hon'ble High Court of Delhi
Name of Hon'ble Judge: C Hari Shankar , H.J.
Case Title:Jayson Industries Vs Crown Craft India

THE SUBJECT MATTER SUIT:

The Plaintiff filed the Suit seeking relief of inter alia Permanant injunction for Infringement of Design.

THE SUBJECT MATTER REGISTERED DESIGN:

The Plaintiff claimed to have granted Design Registrations 326707, 326883 and 32688.

THE SUBJECT MATTER PRODUCT:

The subject matter design of  products involved in questions were of a bucket, a mug and a tub.

THE CLAIMED DESIGN:

The Plaintiff claimed novelty novelty  in the shape, configuration and surface pattern of the bucket, mug and tub.

THE PROCEEDING:

The Suit filed before the Ld. Trial Court and ex parte injunction was granted.

Subsequently by virtue of Section 22[4] of the Design Act 2000, the matter got transferred to Hon'ble High Court of Delhi.

Defendant Appeared and filed application seeking vacation of ex parte injunction.

CONTENTION OF DEFENDANT:

The Defendant contended the subject matter Design to be prior published.

In support of this, the Defendant filed third parties brochures, US Design Registrations, products available on the internet , prior to filing of the subject matter Design Registrations of the Plaintiff.

THE JUDGEMENT:

The Hon'ble High Court of Delhi was pleased to dismiss the Application of Plaintiff under Order 39 Rule 1 and 2 CPC and was pleased to vacate the injunction granted in favour of the Plaintiff.

THE REASONING:

The Two dimensional representation of the application of features or shape, configuration, pattern etc. to an article would constitute a “design”.

The design is to be judged “solely by the eye”. The test to decide whether a particular application of shape, configuration, pattern, etc. to an article constitutes a design is, therefore, essentially ocular/visual.

Judged in an ocular/visual manner, the application of the shape, configuration, pattern, etc., to the article must appeal to the eye. Thus, it is not mere ocular assessment, but ocular Appeal, which is decisive.

One should not confuse the principle of “ocular appeal” or “visual appeal” with “attractiveness”.  “Appeal” is a highly subjective concept, and beauty lies in the eyes of the beholder.  Often, as Narayanan says, strange and bizarre designs may also appeal.

What matters is, therefore, whether the design is unique, vis-à-vis prior art, and whether the unique

features of the design, vis-à-vis prior art, attract the eye. 

If they do, and the difference is not merely mechanical or functional in nature, the Court has to view the matter objectively, and not from the subjective point of view of a connoisseur of the arts. 

Thus, a “design” constitutes of features of shape, configuration, etc., applied, or meant to be applied, to an article of manufacture by industrial process which, when so applied, appeal when judged solely by the eye, and must not be purely functional in nature.

Features of shape, configuration, pattern, etc. which may already existed in prior art may, nonetheless, qualify as original, within the Section 2(g), if, the manner in which they are applied is new.

The only two features of the suit designs, in which novelty and originality are claimed by the plaintiffs, are the vertical ribs along the length of the suit designs and the flanges on the rim.

The various prior arts to which Defendant has alluded clearly indicate that vertical ribs along the length of the bucket/tub/mug in question, from apex to base, as well as extended flanges at the rim of the concerned vessel, are not features which have originated from the plaintiff. Hence the Design of Plaintiff was was held not to be unique enought worthy of protection by the Hon'ble Court.

DISCLAIMER

Information contained herein is being shared in the public Interest. The same should not be treated as substitute for legal advice as it is subject to my subjectivity and may contain human errors in perception, interpretation and presentation of the facts and law involved herein.

Advocate Ajay Amitabh Suman
IP ADJUTOR
Patent and Trademark Attorney
ajayamitabhsuman@gmail.com
9990389539