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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Valmiki Sa Menezes, J.
VBR Consumer Products Private Limited – Appellant
Versus
Capital Foods Private Limited – Respondent
Appeal From Order (AO) No. 2783 of 2022
Decided On : 04-01-2023
TRADEMARK INFRINGEMENT - TEMPORARY INJUNCTION - Trade Marks Act, 1999 (the Act) - Section 135 - Order XXXIX Rule 3 of the Code of Civil Procedure - The court granted an exparte order of temporary injunction restraining the defendant from using the trademark 'SCHEZWAN CHUTNEY' pending the hearing and final disposal of the suit. The appellant challenged the order on various grounds including contravention of the provisions of Order XXXIX Rule 3 of the CPC, lack of reasons for departing from the rule of issuing notice to the defendant, and absence of a prayer for exparte relief of temporary injunction in the application. The respondent argued that the impugned order was valid and that the appellant should file a written statement and oppose the continuation of the impugned proceedings under Order XXXIX Rule 4 of the CPC. The court found that the impugned order did not comply with the Trinity Test as mandated by the Supreme Court, and that the trial Court did not record reasons or express its opinion as to why it was granting the temporary injunction exparte, without notice to the respondent. The court held that the impugned order was not sustainable and quashed and set it aside.
Fact of the Case:
The appellant, the original defendant in a suit filed by the respondent/original plaintiff, challenged an exparte order of temporary injunction granted by the trial Court, restraining the defendant from using the trademark 'SCHEZWAN CHUTNEY' pending the hearing and final disposal of the suit. The respondent claimed that the appellant had infringed its registered trademark 'SCHEZWAN CHUTNEY' and sought a decree of perpetual injunction, damages, and interim relief. The appellant contested the order on various grounds, including contravention of the provisions of Order XXXIX Rule 3 of the CPC, lack of reasons for departing from the rule of issuing notice to the defendant, and absence of a prayer for exparte relief of temporary injunction in the application.
Finding of the Court:
The court found that the impugned order did not comply with the Trinity Test as mandated by the Supreme Court, and that the trial Court did not record reasons or express its opinion as to why it was granting the temporary injunction exparte, without notice to the respondent. The court held that the impugned order was not sustainable and quashed and set it aside.
Issues: The issues included the validity of the exparte order of temporary injunction, compliance with the provisions of Order XXXIX Rule 3 of the CPC, and the absence of a prayer for exparte relief of temporary injunction in the application.
Ratio Decidendi: The court held that the impugned order did not comply with the Trinity Test as mandated by the Supreme Court, and that the trial Court did not record reasons or express its opinion as to why it was granting the temporary injunction exparte, without notice to the respondent. The court found that the impugned order was not sustainable and quashed and set it aside.
Final Decision: The appeal was allowed, and the impugned order dtd. 29/11/2022 was quashed and set aside. The request for continuation of the operation of the impugned order was rejected.
JUDGMENT
1. This is an appeal filed under Order XLIII of the Code of Civil Procedure from order dtd. 29/11/2022 passed by the learned District Judge, granting an exparte order of temporary injunction in CSTMA No.05/2022. The appellant is the original defendant in a suit filed by the respondent/original plaintiff claiming that the appellant has infringed its registered trade mark "SCHEZWAN CHUTNEY".
2. The respondent claims that it has been engaged since 1995, through itself or through its predecessor, in the business of manufacturing and selling food products ranging from sauces, sauce mix, noodles, soups, garlic and ginger paste, dressings, spreads, etc under its well-known trade marks such as "SCHEZWAN CHUTNEY, CHING'S, CHING'S SECRET, SMITH AND JONES, RAJI etc. It is further the plaintiff's case that its products are sold and rendered under its well-known and famous brands, which are known for the high quality and hygienic standards that meet the changing need and tastes of the consumers. The plaintiff further contends that in an around in the year 2012 it independently conceived and adopted the mark "SCHEZWAN CHUTNEY", which is derived from, and is a unique and distinctive combination of the words SCHEZWAN and CHUTNEY in respect of a hot, spicy and peppery sauce/dip having unique proprietary recipe and taste profile, developed by the plaintiff as a part of its DESI CHINESE product portfolio, after significant amount of research ; it is their case that their product is different from and not to be mistaken as a "SICHUAN SAUCE". The plaintiff contends that no other entity was using the mark "SCHEZWAN CHUTNEY" or marks similar thereto for identical or similar products, and this being the case, the plaintiff applied for a registration of the mark, and became the registered proprietor of the mark "SCHEZWAN CHUTNEY" (word per se) under No.2431851 in Class 30, which registration is valid and subsisting with the trade marks registry under the Trade Marks Act, 1999 (the Act).
3. On the basis of the claim to the registered mark, the plaintiff claims that it has a sizeable market share for its products. The plaintiff claims to have been vigilant in protecting its intellectual property rights to the registered trade mark and has initiated action from time to time in respect of its violation by issuing notices, take down requests and filing suits to restrain infringers of the mark by securing orders of restraint from various Courts. It is the plaintiff's case that in recent months prior to the filing of the suit on 5/11/2022, it came across dips, sauces, spreads and the like products marketed by and manufactured or offered for sale by the defendant/appellant before this Court, bearing the mark "SCHEZWAN CHILLY CHUTNEY", containing the registered trademark of the plaintiff. It is the plaintiff's case that the impugned mark is being misused by the defendant by writing the same in an identical font as "SCHEZWAN CHUTNEY" mark of the plaintiff and representing the same in an identical manner i.e. "SCHEZWAN" above and the word "CHUTNEY" below. That further, the impugned products are being sold by the defendant in bottles which are an imitation of and are deceptively similar to the distinctive trade dress and bottles of the plaintiff, including an identical shape, size, contour, level of opaqueness, configuration and cap as those in which the plaintiff sells its products. That a comparison of the plaintiff's mark with the impugned mark, any potential purchaser of a product would be confused due to the deceptive similarity between the two marks and would buy the defendant's products with the impugned mark, leading to a huge loss to the plaintiff. On these averments, the plaintiff sought a decree of perpetual injunction against the defendant from infringing in any manner the "SCHEZWAN CHUTNEY" trademark of the plaintiff bearing No.2431851 in any manner, and from using in relation to any of the impugned products or goods for which the registered ma
The main legal point established in the judgment is that the grant of an exparte order of temporary injunction must comply with the Trinity Test as mandated by the Supreme Court, and the trial Court ....
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The court emphasized the importance of weighing the interests of contesting parties and the limited scope for interference with the trial court's discretion in granting or refusing temporary injuncti....
Refusal to grant ex parte injunction is appealable; procedural adherence is vital for determining appealability under CPC.
(1) An ad interim injunction shall not be granted in derogation of right of opposite party.(2) An order passed without issuing notice to opposite party cannot be brought under purview of Section 36 C....
An appeal against an ex-parte injunction is maintainable under Order XLIII Rule 1(r), affirming that the right to appeal is a statutory right.
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