infringement of registered trade mark WALKER/MORNING WALKER We have already pointed out that from the documents marked as Annexures B, C, D and E annexed to the injunction application, the plaintiff/appellant has made out a strong prima facie case of violation of infringement of their trademark and, thus, it is a fit case for grant of adinterim injunction. We, consequently, set aside that part of the order impugned by which His Lordship refused to grant any ad-interim order and pass an order of ad-interim injunction in terms of prayers (b), (c), (d) and (e) of this application till the disposal of the application for injunction, which is pending before the learned single Judge.

Image via Wikipedia

APOT No. 273 of 2011 
G.A.1883 of 2011 
IN THE HIGH COURT AT CALCUTTA 
Civil Appellate Jurisdiction 
Original Side 

SPACEAGE MULTIPRODUCTS PVT. LTD. Appellant 
 Versus 
 TVSN MARKETING & ORS. Respondents 
 For Appellant : Mr. Gautam Chakraborty, Sr.Advocate with 
 Mr. S.Basu, Mr. P.Sinha and 
 Mr. Atish Ghosh, Advocates 
 For Respondent No.2 : Mr. Abid Hussain with 
 Mr. K.J.Tewari, Advocates 
 For Respondent No.3 : Mr. C.S.Saha, Advocate 
 BEFORE: 
 The Hon'ble JUSTICE BHATTACHARYA 
 The Hon'ble JUSTICE DR. SAMBUDDHA CHAKRABARTI 
 Date : 1st September, 2011. 
 THE COURT : Instead of disposal of the 
application, we propose to hear out the appeal itself as 
the respondent No.1 in spite of service has not entered 
appearance and the other two respondents have already 
affirmed affidavits-in-opposition to the application filed 
before this Appellate Court. 
 This appeal is at the instance of plaintiff in a 
suit alleging infringement of registered trade mark 
WALKER/MORNING WALKER and also passing off and is directed 
against order dated 16
th
 June, 2011 passed by a learned 
single Judge of this Court by which His Lordship while 2
entertaining an application for injunction restraining the 
respondents from using the trade name of the appellant or 
any part thereof, merely passed direction for filing 
affidavits-in-opposition, but did not grant any ad-interim 
order of injunction without disclosing any reason 
whatsoever for refusal of grant of such ad-interim 
injunction. 
 Being dissatisfied, the plaintiff has come up with 
the present appeal. 
 As indicated earlier, Respondent Nos.2 and 3 have 
entered appearance but respondent No.1 has not appeared and 
controverted the allegations made by the appellant. 
 We find from the materials on record that the 
plaintiff-appellant is the registered owner of the label 
MORNING WALKER/WALKER under the Trademarks Act, 1999 and 
also holder of copy right of MORNING WALKER. The relevant 
certificates are annexed to the application. The specific 
allegation of the appellant is that the respondents were 
giving advertisements under the label MORNING WALKER and 
WALKER thereby violating the right of the appellant. 
Respondent Nos. 2 and 3 are not claiming any right over the 
said label MORNING WALKER or WALKER and according to the 
respondent No.2, they should not have been made party as 
they are not making any advertisement in respect of the 3
Product, namely, SLIMMING HEALTH WALKER, although the 
vendors of SLIMMING HEALTH WALKER/WALKER had been 
contending that they had right to sell the product. 
Respondent No.2 contends that they are unnecessarily made a 
party. 
 So far as Respondent No.3 is concerned, according 
to the said respondent, it does not deal with the alleged 
product. 
 In view of the aforesaid facts, we find that the 
plaintiff-appellant has made out a strong prima facie case 
to have an order of injunction restraining the respondents, 
their servants, agents and assigns from infringing any 
label or mark bearing the artistic work with the label 
MORNING WALKER and/or WALKER with any other trade mark 
containing the label WALKER and/or MORNING WALKER and/or 
any label which is deceptively similar to the appellant’s 
label being Annexures B, C, D and E to the present 
application. 
 It appears that the learned single Judge passed 
direction for filing affidavits which necessarily indicates 
that His Lordship was prima facie satisfied with the case 
made out by the appellant but no reason was assigned why in 
spite of passing direction for filing affidavits, no 
injunction should be granted. 4
 We have already pointed out that from the documents 
marked as Annexures B, C, D and E annexed to the injunction 
application, the plaintiff/appellant has made out a strong 
prima facie case of violation of infringement of their 
trademark and, thus, it is a fit case for grant of adinterim injunction. We, consequently, set aside that part 
of the order impugned by which His Lordship refused to 
grant any ad-interim order and pass an order of ad-interim 
injunction in terms of prayers (b), (c), (d) and (e) of 
this application till the disposal of the application for 
injunction, which is pending before the learned single 
Judge. 
 The appeal is, thus, allowed. 
 The order impugned is modified to the extent 
indicated above. 
 In the facts and circumstances, there will be, 
however, no order as to costs. 
 Photostat certified copy of this order be made 
available to the parties upon compliance of usual 
formalities.  ( BHATTACHARYA, J.) 
 (DR. SAMBUDDHA CHAKRABARTI, J.) 
Rsg(ARCR)

Related articles

• Making an exhibition of oneself: trade fairs and injunctive relief (ipkitten.blogspot.com)
• Canadian Court Sides With Online Anonymity (yro.slashdot.org)