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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)
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