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DELHI HIGH COURT
JYOTI SINGH
Silvermaple Healthcare Services Private Limited – Appellant
Versus
Tajinder Bhatti (Dr.) – Respondent
JUDGMENT
Jyoti Singh, J.
I.A. 13233/2022 (under Order VII Rule 11 CPC, by Defendant)
1. Present application has been preferred on behalf of the Defendant under Order VII Rule 11 read with Section 151 CPC, 1908 seeking rejection of the plaint on two grounds: (a) Plaintiff is legally disentitled to institute a suit for infringement of DHI marks by virtue of provisions of Section 53 of the Trade Marks Act, 1999 (hereinafter referred to as the `Act'); and (b) non-joinder of necessary party qua the claim for disparagement under Proviso to Rule 9 of Order I CPC.
2. Relevant it would be to mention at this stage that during the course of hearing of the present application, with respect to the claim of infringement of the DHI trademarks, learned counsel for the Plaintiff had fairly given up the relief of infringement on account of the Plaintiff being a licensee under the Master Franchise Agreement dated 26.03.2018 (hereinafter referred to as the `MFA') in light of the statutory bar under Section 53 of the Act. Therefore, this Court is not adjudicating on the first ground raised by the Defendant for rejection of the plaint.
3. Arguing in support of the second ground qua disparagement,
A licensee cannot claim disparagement of trademark without the owner present as a party; non-joinder does not justify the rejection of a plaint under Order VII Rule 11 CPC.
To establish trademark infringement, the plaint must demonstrate use 'in the course of trade'; mere display of a mark without commercial activity does not satisfy this requirement.
The court found that an ex parte judgment can be granted under Order VIII Rule 10 CPC if the defendant fails to respond, ensuring that the plaintiffs' rights under their registered trademarks are uph....
Ex-parte interim orders were upheld against defendants for trade mark infringement, dismissing claims of suppression as insufficient given established rights and the distinct nature of John Doe actio....
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