Point of Law: Courts may in the interest of justice, set aside dismissal order or ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate anytime and seek relief.

ORDER :

I.A. 3466/2020 (u/O IX Rule 13 CPC) & I.A.3467/2020 (u/S 151 CPC) in CS(COMM) 628/2019

1. In the present suit for permanent injunction restraining infringement of trademarks, passing off, rendition of accounts, damages and delivery up, an ex parte decree was passed this Court vide judgment and order dated 31.01.2020 against the defendants i.e. the applicants herein, which is subject matter of challenge of the above captioned first applicants.

2. By the above captioned second application, applicants/defendants are seeking stay of order dated 05.12.20219 vide which ex parte ad interim injunction was granted in favour of plaintiffs and against the applicants/defendants as well as order and judgment dated 31.01.2020, vide which suit was ex parte decreed against the applicants/defendants.

3. At the hearing, learned counsel appearing on behalf of the applicants/defendants had submitted that defendants are in the business of making Floor tiles and based out of Morbi, Gujrat under the name and style of “Italica”. According to applicants/defendants “Italica” came into existence in the year 2004 for manufacturing and distributing, supreme and genuine top notch quality tiles in India and to the world and has established a large distribution network which consists of more than 300+ dealers all over the world. Learned counsel submitted that defendants strive for creating new, original and distinguished designs for its tiles, with the sole intention of giving its customers strikingly different and attractive upscale decorative tiles, in order to maintain its reputation and goodwill.

4. It is further claimed on behalf of applicants/defendants that the trade mark “Italica” is registered under Clause-19 in favour of defendant No.1/company under the name Italica Floor Tiles Private Limited since the year 2005 and under Clause-11 since the year 2017. It is next submitted that defendant No.2-Ikaa Granito Private Limited was incorporated in the year 2016 and its first invoice was issued in July, 2017, which bore the trade mark “Italica”, since permitted by defendant No.1 for promotion of defendant No.2 company.

5. During the course of hearing learned counsel for applicants/defendants emphasized that defendant No.2 is not using the mark IKAA but it is a part of corporate name of the company, which had been duly approved by the Registrar of Companies as the name of the company and thereby, there is no deliberate attempt to pass of the plaintiff’s trademark. It was empathically submitted that the Ikaa Granito Private Limited is not the trademark of the defendant No.2 and is not used as the trade mark of defendants. Attention of this Court was also drawn to the spellings and pronouncement of plaintiff’s trade mark and defendants’ trade name and trade mark, which is as under:-

6. It was also contended that there cannot be any confusion between the two trade names i.e. “IKEA” and “Italica” and Ikaa Granito Private Limited is only the corporate name of the defendant No.2 and is limited only to the production and sale of tiles and so, it cannot be said that defendants have deliberately attempted to infringe plaintiff’s trade mark or attempted to passing off the same. Also, it was submitted that the name of defendant No.2 company is found only on the packaging in compliance of various laws, rules and regulations requiring the name of the manufacturer/marketeer to be so mentioned and mere affixation of the Company name on the boxes containing tiles, marbles etc does not qualify as a use of trademark and is not covered under provisions of the Section 29 of the Trademarks Act.

7. With regard to defendants being proceeded ex parte, learned counsel for the defendants submitted that defendants had received summon of the