Concealment of material facts while obtaining ex parte injunction disentitles the plaintiff from equitable relief of injunction.

JUDGMENT

Rajiv Sahai Endlaw, J. - Ia No.14412/2013 (of plaintiff under Order XXXIX Rules 1&2 of the CPC) & IA No.18379/2013 (of defendant no.1 under Order XXXIX Rule 4 of the CPC).

1. The plaintiff instituted this suit, as per amended plaint verified on 25th February, 2016 and filed pursuant to amendment allowed vide order dated 16th February, 2016, for the reliefs of permanent injunction restraining the two defendants viz. Mohan Meakin Ltd. and Trade Links Pvt. Ltd. from manufacturing and selling or operating in food items such as corn flakes, cereals, muesli, etc. under the mark "8AM' or any other mark similar or deceptively similar thereto, amounting to infringement and passing off their goods as that of the plaintiff, and for ancillary reliefs.

2. It is the case of the plaintiff in the amended plaint aforesaid, that (i) the plaintiff, since the year 1986 is carrying on business in respect of products such as corn flakes, muesli, mix fruit flavour muesli, porridge, etc.; (ii) the plaintiff is the registered proprietor of the trade mark "8AM', which was coined and adopted on 1st May, 2004 and has been continuously, extensively and exclusively used by the plaintiff since then; (iii) the plaintiff has been packing corn flakes, muesli, soya chunks, instant porridge, honey, all under the mark "8AM' and has been marketing the said goods in all major cities; (iv) the plaintiff, besides of the mark "8AM', is also the proprietor of other marks; (v) the plaintiff, on 8th June, 2004 applied for registration of the trade mark "8AM' in Class 30, claiming use since 1st May, 2004 and which application is being opposed by Radico Khaitan Ltd.; (vi) the plaintiff, on 2nd July, 2007 applied for registration of label marks containing the trade mark "8AM' as essential feature, with respect to goods in Classes 29, 30 and 32 and which registration was granted on 20th November, 2014, making the plaintiff registered proprietor of the trade mark "8AM'; (vii) the other applications of label mark "8AM' are pending registration; (viii) owing to the extensive sales and promotional activities undertaken, coupled with superior quality of goods sold under the trade mark "8AM', the goods sold under the said trade mark are associated with the plaintiff; (ix) the plaintiff, within a span of eight years from launch of the brand "8AM' in 2005-06 with sales of Rs.7,99,440/- has in 2012-13 reached the sales figure of Rs.6,52,00,000/-; (x) due to priority in adoption and use coupled with extensive long uninterrupted use of the trade mark "8AM' and registration of the said mark, the same has become distinctive with the goods of the plaintiff; (xi) in October, 2007, the plaintiff gathered from trade mark journal dated 16th October, 2007 that the defendant no.1, on 2nd August, 2005 had filed an application seeking registration of the mark "8AM' in respect of corn flakes and wheat porridge, on "proposed to be used" basis and which was subsequently, as an afterthought on 23rd August, 2005 changed to, claim of use since 1st January, 2004; (xii) the plaintiff initiated opposition proceedings with respect to the said application of the defendant no.1 and which opposition is pending; (xiii) in August, 2012, the plaintiff for the first time learnt that the defendant no.1 had fraudulently and by misrepresentation got the mark "8AM Corn Flakes (Label)' registered in Class 30 for corn flakes and wheat porridge; (xiv) the plaintiff has a superior and exclusive right over the mark "8AM', by virtue of being a prior bona fide user and registered proprietor thereof; (xv) a close look at the official website of the defendant no.1 divulges that no use of the trade mark "8AM Corn Flakes (Label)' is being made or has ever been made by the defendant no.1 in respect of the goods for which it is registered or for any other goods; (xvi) the latest annual report of the defendant no.1 for the years 2011-12 also does not bear any reference to the trade mark "8AM Corn Flakes (Label)'; (xvii) on