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2014 Supreme(Del) 3375
IN THE HIGH COURT OF DELHI
G.P. Mittal, J.
Dabur India Ltd. - Appellant
Versus
Alka Ayurvedic Pvt. Ltd. - Respondent
CS (OS) No. 2639 of 2008
Decided On : 14-11-2014
Advocate Appeared:
For the Appellant :Hemant Singh, Mamta R. Jha and Manish K. Mishra, Advocate
For the Respondent:M.K. Miglani and Aayushmaan Gauba, Advocate
The central legal point established in the judgment is the importance of due diligence in trademark matters, the right to explain lack of knowledge of trademark registration, and the significance of pleadings in seeking amendments.
Headnote:
Amendment - Trademark Infringement - Trade Marks Act, 1999 - Section 151 CPC, Order VI Rule 17 CPC - CS (OS) No. 2639/ 2008 - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Order VI Rule 17 read with Section 151 CPC, and the Trade Marks Act, 1999. It highlighted the importance of pleadings, amendments, and the requirement to disclose relevant information related to trademark registration. The court emphasized the need for due diligence and the right to explain lack of knowledge of registration, influencing its decision to allow the amendment sought.
Fact of the Case:
The dispute involved trademark infringement and passing off in respect of the trademark 'HAJMOLA'. The Plaintiff sought amendment of the reply to preliminary submissions/ objections and replication, and permission to take a plea that the registration of the Defendant's trademark 'PACHMOLA' was invalid. The Defendant opposed the amendment on the ground that the trial had begun.
Finding of the Court:
The court allowed the amendment sought, emphasizing that the replication should be treated as part of the pleadings to controvert the averments made in the written statement. It held that the Plaintiff's explanation for lack of knowledge of the registration of the Defendant's trademark was not far-fetched, and therefore, the amendment was allowed. The Defendant was granted the right to file a sur-rejoinder.
Issues: The issues involved the amendment of pleadings, the requirement for due diligence in trademark matters, and the timing of the trial commencement.
Ratio Decidendi: The court's decision was influenced by the importance of pleadings, the right to explain lack of knowledge of trademark registration, and the need for due diligence in trademark matters.
Final Decision: The court allowed the amendment sought, subject to the payment of costs to the Defendant, and directed the filing of amended replication and sur-rejoinder within specified timelines.
ORDER :
G.P. Mittal, J.
I.A. No. 10059/ 2013 (Order VI Rule 17 CPC) in CS (OS) No. 2639/ 2008
1. By virtue of this application under Order VI Rule 17 read with Section 151 CPC, the Plaintiff seeks amendment of paras 2 (ii) and 20 of the reply to preliminary submissions/ objections and para 9 of the replication.
2. The dispute between the parties is with regard to infringement and passing off in respect of trademark 'HAJMOLA'. The learned Single Judge vide order dated 17.12.2008 granted an ex-parte injunction in favour of the Plaintiff. The order was vacated on 06.10.2009 on the grounds, inter alia, that the Defendant was the registered owner of the alleged infringing trademark 'PACHMOLA' and that the said fact had not been disclosed by the Plaintiff. So much so, that the same had not even been admitted in the replication although a specific plea was taken by the Defendant in the written statement that a search report was filed in the case of Pankaj Goel v. M/s. Dabur India Limited, FAO (OS) No. 82/ 2008, wherein the registered trademark 'PACHMOLA' had come to the notice of the Plaintiff. The packaging of the impugned product was also filed in the said case.
3. The plea taken by the Plaintiff is that in the case of Pankaj Goel (supra), there were several trademarks which were similar to the trademark 'HAJMOLA' and there were several marks with the name 'PACHMOLA'. One trademark registered in the name of 'PACHMOLA' was in the name of one Pritam Dass and it was for this reason that in the replication, the Plaintiff had denied knowledge of the registration of the trademark 'PACHMOLA' in the name of the Defendant.
4. Furthermore, the Plaintiff seeks permission to take a plea that the registration has been granted to the Defendant in contravention of the provisions of the Trade Marks Act, 1999 and therefore, is invalid registration. The same is liable to be cancelled and the Plaintiff has filed a cancellation Petition being ORA/146/2011/TM/DEL.
5. The application is opposed on the ground, first, that the replication is not a part of the pleadings and second, that the trial of the suit has begun as the evidence by way of Affidavit has already been filed. In support of the contention, reliance is placed on the judgment of this Court in Mohd. Saleem and Others Vs. Naseer Ahmed, AIR 2007 Delhi 48.
6. Although initially, the learned counsel for the Defendant also pointed out that there was registration in the name of the Defendant, yet while going through the documents, it was admitted that there was no registration of the trademark 'PACHMOLA' in the name of Alka Ayurvedic Pvt. Ltd., the Defendant herein and it was merely an application filed in the year 2005, which had been opposed.
7. It is true that normally replication is not part of the pleadings. However, if the replication is permitted to be filed to controvert the averments made in the written statement, it will be a part of the pleadings. In this case, the Plaintiff sought permission to file replication which was allowed. Thus, the replication will be treated as part of the pleadings.
8. Hence, the amendment sought cannot be declined on the ground that the replication cannot be permitted to be amended. As far as judgment in Mohd. Saleem and Ors. v. Naseer Ahmed is concerned, the issue before the learned Single Judge was whether the trial begins with the settlement of issues or not and it was held that the trial does not begin with the settlement of issues. The learned counsel for the Defendant refers to para 14 of the report in Mohd. Saleem, where it was held as under:-
"14. The conspectus of the aforesaid pronouncements and definitions as to when a commencement of trial takes place leaves no manner of doubt that it refers to a stage after framing of issues and after the hiatus period thereafter where steps have to be taken to start the trial by examination of witnesses whether in the form of filing of affidavit or otherwise."
9. In the instant case, examination of the witnesses has not beg
