Suppression and concealment of material facts by a party in obtaining an ex parte ad interim injunction can disentitle them to the benefit of the injunction, and suppression of facts is a ground for refusal of an equitable relief of injunction.

V.K. Shali, J. (Oral)

I.A. No.8156/2014 (under Order 39 Rule 4 CPC) & I.A No.6786/2014 (under Order 39 Rule 1 & 2 CPC)

1. By this application bearing No.8156/2014 filed under Order 39 Rule 4 CPC, the defendants are seeking vacation of ex parte ad interim injunction granted by this court in favour of the plaintiff on 16.4.2014.

2. The question to be decided by this order is as to whether the ex parte ad interim injunction order granted in favour of the plaintiff deserves to be continued or not once the defendant puts in appearance and makes an allegation that the plaintiff is guilty of suppression of material facts before they landed in court. Once this issue is decided obviously it will take care of application under Order 39 Rule 1 & 2 CPC as well as an application under Order 39 Rule 4 CPC. But before dealing with the rival contentions in this regard, it may be pertinent here to give a brief background of the case.

3. The plaintiff filed a suit for permanent injunction against the defendants seeking a restraint against infringement of the trade mark and domain name ‘AIMCAT’ as well as restraint against passing off and rendition of accounts. Other consequential reliefs of delivery up, damages etc. were also sought because of alleged unfair competition and dilution of their trade mark. It was alleged that the plaintiff was the original inventor, registered proprietor and prior user of the trade mark ‘AIMCAT’. The said trade mark has been coined from the expression ‘ALL INDIA MOCK CAT TEST’ and it was alleged that it has been used by the plaintiff exclusively, continuously and assertively since 2002. It was alleged that the said mark is used by the plaintiff qua its specialized coaching packages and test services for CAT exam.

4. It was alleged that defendants have now recently started using the mark ‘AMCAT’ which is visually, structurally and phonetically similar to the plaintiff’s mark AIMCAT. It was also alleged that defendants are also using the mark for a series of online employability assessment test amounting to clear infringement of the plaintiff’s coveted rights under the statute as well as common laws.

5. The plaintiff had thereafter revealed about its organisation like the year when the activities were started, the number of offices spread for its activities in different towns. It was also stated that the forte of the organisation has been to conduct tests for IIT-JEE. It was also stated that turnover is from 2002-2003 gradually increasing to 10,665.74 crores in 2012-2013. The plaintiff also stated that its trade mark is registered in Class 16 and 41 of Schedule IV of the Trade Marks Act, which are reproduced as under :-

“16. ……………… instructional and teaching material (except apparatus)………….

41. Education; providing of training; entertainment; sporting and cultural activities.”

6. On the basis of these averments made in the plaint and after hearing the learned senior counsel Mrs. Pratibha M. Singh, this court passed an ex parte ad interim injunction in favour of the plaintiff restraining the defendants, their principal officer, family members, servants, agents, dealers, distributors, retailers, assignees, licensees and anyone acting for and on their behalf from using, advertising, promoting, selling or offering for sale in any manner whatsoever its services under the mark ‘AMCAT’ or any other title/name identical or deceptively similar to plaintiff’s registered trademark or to use the said mark as a part of domain name in relation to educational services or in respect of any goods/services in any manner whatsoever so as to result in infringement of the plaintiffs rights in the registered trademark.

7. The application under Order 26 Rule 9 CPC read with Section 151 CPC was also allowed and local commissioners were appointed.

8. The defendants company, on being served, filed their reply to the application as well as an application under Order 39 Rule 4 CPC for vacation of an ex parte ad interim stay. Th