An ex-parte ad interim injunction cannot be issued against unknown defendants due to compliance issues with legal procedures, upholding the necessity for known parties in trademark infringement cases.

JUDGMENT

[VIA VIDEO CONFERENCING]

Asha Menon, J.

1. This appeal has been filed by the plaintiff before the learned Trial Court against its order dated 7th February, 2022 whereby the learned Trial Court declined to grant ex-parte ad interim injunction against the respondent/defendant.

2. Mr. Sudarshan Kumar Bansal, learned counsel for the appellant submitted that the learned Trial Court had wrongly relied on the order of a Coordinate Bench of this court in Januki Kumari J.B. Rana v. Ashok Kumar, 2017 SCC OnLine Del 7533. Vide the same order, the learned Trial Court had also directed summons to be issued to the defendant. The learned counsel for the appellant submitted that when the identity of the infringers of the registered trademarks of the appellant, viz. 'HUGO BOSS', 'BOSS', 'HUGO' and other BOSS/HUGO formative marks for its clothing/apparels, accessories, perfumes, lifestyle goods, watches, shoes, belts, bags, was unknown, there was no occasion for the learned Trial Court to have directed issuance of summons. Rather an injunction against infringement ought to have been granted.

3. The learned counsel explained that the suit was in the nature of a "John Doe" litigation and the defendant(s) is/are unknown person(s) which was why the name "Ashok Kumar" has been used, and till the Local Commissioner went to the addresses given, the identity of the infringers would not be known and it is only once the person(s) from whose premises counterfeit products were seized would come to the court, the suit would proceed against them and summons served to them. It is further submitted that the learned Trial Court has erred in not appointing a Local Commissioner and it was prayed that in view of the fact that not only in the prayer in the appeal but separately by way of CM No.8757/2022 under Order XVI Rule 9 of the Code of Civil Procedure, 1908 ('CPC' in short), a prayer has been made to appoint a Local Commissioner, this Court may so appoint the Local Commissioner to go to the premises mentioned at the address to seize counterfeit products.

4. The learned counsel for the appellant has forwarded to the Court Master by email the orders passed in Januki Kumari J.B. Rana (supra) along with orders passed by Coordinate Benches of this Court in Luxottica Group S.P.A & Anr. vs. Saad Nasim & Ors. [order dated 16th April, 2010 in CS(OS) 688/2010], Societe Des Produits Nestle, S.A & Anr. Vs. Mohd Zahid And Sons & Ors. [order dated 28th November, 2014 in CS(OS) 3629/2014], Espn Software India Private Ltd. v. Tudu Enterprise, 2011 SCC OnLine Del 5710 and Doctutorials Edutech Private Limited Vs. Telegram Fz-Llc & Ors. [Order dated 25th January, 2022 in CS(COMM) 60/2022] The Court has considered these cited cases as well as the submissions of the learned counsel for the appellant.

5. This appeal is directed fundamentally against the refusal of the learned Trial Court to exercise its discretion to grant ex-parte ad-interim injunction, placing reliance on the decision in Januki Kumari J.B. Rana (supra). Where a view is possible on the material on the record, without sound cause, a superior court would be reluctant to supplant its own view in appeal. The learned Trial Court has relied on the order in Januki Kumari J.B. Rana (supra). This Court has considered the said judgment and finds that the learned Trial Court has rightly relied on the said judgment.

6. In the present case, admittedly there is no known respondent/defendant. The respondent/defendant sued is "Ashok Kumar". In Januki Kumari J.B. Rana (supra), relief was declined precisely for this reason that ex-parte ad-in