The main legal point established in the judgment is the acquisition of distinctiveness of a trademark through long use and the grant of interim relief to restrain the defendants from using the trademark 'Hitech' and limit the protection for the device marks containing the word 'Nalam'.

JUDGMENT

(Prayer: This Application is filed under Order XIV Rule 8 of O.S. Rules of the Madras High Court, Original side, 1956 r/w r/w Order XXXIX Rule 4 of CPC, 1906 to forthwith vacate the ex-parte ad interim injunction passed by this Court vide Order dated 13.04.2022 in O.A.No.210 to 214 of 2022 in C.S.(Comm.Div)No.75 of 2022 with exemplary costs.)

Common Order:

1. Two established players in the medical diagnostics space are the driving forces in this suit for relief in respect of alleged trademark infringement and passing off. The plaintiff presented O.A.Nos.210 to 214 of 2022 and Application No. 1699 of 2022 along with the plaint. On 13.04.2022, ad interim orders, as prayed for in the original applications, were granted ex parte except with regard to the use of the corporate name Neuberg Hitech Laboratories Pvt. Ltd. Upon receipt of notice, the defendants filed Application Nos.1851 to 1855 of 2022 to vacate the ad interim order. The grounds urged in support of the applications to vacate the ad interim orders inter alia included the institution of the suit without disclosing that the plaintiff was in voluntary liquidation and the presentation of the suit by an authorised representative instead of the Liquidator. By order dated 28.04.2022, the ad interim order was modified, albeit as an interim arrangement pending adjudication of the interlocutory applications. As regards the mark ''Hitech'', the order of interim injunction was extended subject to the carve out for the corporate name, Neuberg Hitech Laboratories Pvt. Ltd., on condition that changes are made to the colour and font size of name boards. As regards the device marks containing the word ''Nalam'', the protection was limited to marks which are identical to or deceptively similar to the registered device marks of the plaintiff. As a condition for such extension, the plaintiff was directed to procure and provide a guarantee-cum-indemnity deed executed by Metropolis Healthcare Limited. A Guarantee-cum-Indemnity Deed dated 07.06.2022 was provided in compliance with the said condition.

2. In the above circumstances, the plaintiff filed an additional application to take on record additional documents; and the plaintiff and Metropolis Healthcare Limited filed applications to implead Metropolis Healthcare Limited as the second plaintiff in the suit and amend the plaint. Counters were filed in all these applications by the respondents/defendants. For the sake of clarity, in this order, the expressions plaintiff and first or second defendants are used to describe the parties.

3. Oral arguments on behalf of the plaintiff were addressed by Mr.Satish Parasaran, learned senior counsel. In support of the application to implead Metropolis Healthcare Limited, it was submitted that the Liquidator of the plaintiff distributed the plaintiff's business on a going concern basis to Metropolis Healthcare Limited with effect from 04.06.2022. The distribution of assets encompassed the intellectual property rights of the plaintiff. As a result, it was contended that it has become necessary to join Metropolis Healthcare Limited as the second plaintiff in the suit. By drawing reference to paragraphs 12 and 15 of the counter affidavit in Application No.2299 of 2022, it was contended that the defendants admitted that the proposed plaintiff has a significant interest in the subject matter of the suit. Therefore, it was contended that the defendants cannot oppose the impleading application. As regards the application for amendment, learned senior counsel submitted that the defendants raised objections to an authorized representative instituting the suit instead of the Liquidator. Since the suit was instituted with the consent of the Liquidator, the plaintiff decided to request for permission to amend the cause title and relevant paragraphs of the plaint so as to substitute the authorized signatory with the Liquidator. In addition, the plaintiff discovered the use by the first defendant of the website,