The court emphasized the importance of truthfulness in pleadings and the duty of parties to disclose material facts. It also clarified the distinction between a descriptive word and a coined or invented word in the context of trademark infringement.

ORDER :

K.R. Shriram, J.

1. By an ex parte order dated 24 July 2020, this Court was pleased to grant ad interim relief in terms of prayer clauses - (a) and (c) which read as under:

(a) pending the hearing and final disposal of the suit, the defendant by themselves, their proprietor/partners, servants, agents, stockists, distributors, dealers, assignees and all those connected with the defendant in their business be restrained by an Gauri Gaekwad order and injunction of this Hon'ble Court from marketing, distributing, packaging, importing, selling and/or using in any manner whatsoever in relation to their wet dates, dates or any other like goods, the impugned mark SARAH KIMIA/KIMIA or any mark identical with and/or deceptively similar to the plaintiff's trade mark KIMIA, so as to infringe upon the plaintiff's said trade mark registered under No. 2235461 in class 29;

(c) pending the hearing and final disposal of this suit, the Court Receiver, High Court, Bombay, or such other fit and proper person/s as this Hon'ble Court thinks fit, be appointed Receiver/s with all powers under Order XL Rule 1 and Order XXXIX Rule 7 of the Code of Civil Procedure, 1908, to attend and search the premises, shops, retail outlets, offices, factories, manufacturing units, godowns, warehouses, cold storages of the defendant, other premises wherever the goods, viz., wet dates, dates bearing the impugned mark and trade dress of SARAH KIMIA/KIMIA and all the other like goods including the labels, tins, pouches, wrappers, stickers, packaging and advertisement materials bearing the impugned mark or any other mark/s deceptively similar to the plaintiff's trade mark KIMIA as may be found, stocked, sealed or are lying and to break open such locks with police assistance (if needed), make an inventory, seize and take custody/possession thereof by sealing the said products at the defendant's premises under lock and key and also of all related items such invoices, printing materials, screens, cylinders, blocks, moulds, dyes, stencils, machinery and master plates used to print counterfeit packaging materials; lying at the premises, offices or factories, manufacturing units, godowns, warehouses, cold storages of the defendant or their agents or at any other place/s and the defendant by themselves, their proprietor/partners, legal heirs, servants, employees, representatives, agents, assignees, stockists, be ordered and directed to deliver all of the aforesaid to the Court Receiver or to such other fit and proper person as this Hon'ble Court thinks fit and the Court Receiver must carry out such search and seizure with local police assistance if necessary.

2. Court Receiver was appointed and he was directed to seize and seal all offending products and related items found in the premises of defendant or at any other place.

3. Against this order, defendant took out an application under Order 39 Rule 4 of the Code of Civil Procedure 1908 seeking the said order dated 24 July 2020 to be vacated. Defendant also filed reply to the Interim Application of plaintiff. Defendant came with essentially two grounds, (a) that there has been misrepresentation by plaintiff at the time of making application for ad-interim relief without notice, which misrepresentation was apparent from certain portions of the order and pleadings also; and (b) that KTMLA is a descriptive word and therefore, plaintiff's registration is bad in law and, therefore, plaintiff is not entitled to any ad-interim relief. At the stage of rejoinder, counsel for defendant also relied upon Section 35 of the Trade Marks Act 1999 (the Act) and submitted that defendant has been using KIMIA as a bona fide description of variety of dates and under Section 35 plaintiff is not entitled to interfere with defendant's use of KIMIA as a bona fide description of the character or quality of his goods and services. The counsel for defendant submitted that statutory defences under Section 35 are always available and are not wiped out.

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