The main legal point established in the judgment is the balance of equities between the parties and the maintenance of public interest in permitting the sale of existing stock in trademark infringement cases.

JUDGMENT

Jyoti Singh, J. (Oral)

CM APPL. 28374/2022 & 28375/2022 (Exemption)

Allowed, subject to all just exceptions.

Applications stand disposed of.

FAO (COMM) 94/2022 & CM APPL. 28373/2022

1. Present appeal has been filed under Order 43 Rules 1(r) and 2 CPC read with section 13 of the Commercial Courts Act, 2015, assailing the orders dated 30.05.2022 and 09.06.2022, passed by the learned Trial Court in CS(COMM) No. 394/2022. Appellant herein is the Defendant in the suit and Respondent No.1 is the Plaintiff. The parties are hereinafter referred to by their litigating status in the present appeal.

2. Respondent No.1 (hereinafter referred to as the `Respondent') filed a suit against the Appellant, alleging infringement of trademark and copyright as well as passing off with respect to its registered trademark `LABDIC RELIEF' and packaging thereof as well as unfair competition, dilution, etc. in respect of product being `pain relieving' tablets. Vide order dated 30.05.2022, an ex parte ad-interim injunction was granted by the Trial Court restraining the Appellant from manufacturing, selling or dealing in pharmaceutical preparations under the impugned mark `ALDIGESIC PAIN RELIEF' or any other mark similar to the mark of the Respondent. Appellant was also restrained from using its trade dress/product packaging and the blister packaging, alleged to be similar to Respondent's packaging under `LABDIC RELIEF'.

3. Upon being served, Appellant filed an application under Order 39 Rule 4 CPC seeking setting aside of or vacating/varying the order dated 30.05.2022. An application was also filed under section 151 CPC for permission to sell its existing stock, amongst other reliefs.

4. The learned Trial Court vide order 09.06.2022 declined to vacate the interim injunction, clarifying, however, that Appellant was not restrained from dealing in products bearing the trademark `ALDIGESIC' and rejecting the prayer for sale of the existing stock.

5. Extensive arguments have been addressed by learned Senior Counsels for the parties on the merits of the impugned orders. Contentions raised on behalf of the Appellant are inter alia that: (a) the ex-parte injunction was obtained by suppression of material facts, particularly that Appellant is the prior registrant of its trademark `ALDIGESIC' (word) as against Respondent's registration for `LABDIC RELIEF' (word); (b) Respondent suppressed that the Appellant has been using the trademark `ALDIGESIC' since 2010 continuously and extensively; (c) packaging of Appellant's product, i.e., pain relieving tablets, sold under the mark `ALDIGESIC PAIN RELIEF' and that of Respondent's product sold under the mark `LABDIC RELIEF' are palpably different and distinct with marked differences; (d) there are stark differences between the rival cartons and blister strip packaging; (e) Respondent cannot claim monopoly over the colour of the packaging, especially when the `red' colour is common to trade; and (f) the word `RELIEF' is generic and descriptive to pain relief tablets and common to trade, used to describe the character of the product as a general descriptor and no proprietary rights can vest in the Respondent, to its exclusive use.

6. Preliminary objection is raised on behalf of the Respondent with regard to maintainability of the appeal on the ground that the relief of selling the existing stock was sought by the Appellant in an application filed under section 151 CPC and no appeal lies against an order passed under the said provision. On merits, the contentions, as articulated by the learned Senior Counsel are: (a) Respondent adopted the trademark `LABDIC RELIEF' for manufacturing and marketing pain killer tablets in the year 2001, packaged in a unique and artistic dispenser pack, which has a glossy holographic background prominently displaying the trademark `LABDIC' below which the mark `RELIEF' is written upfront in a bold eye catching gold font and a blister pack, the front of which is completely red with a ver