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interim injunction
INTELLECTUAL PROPERTY APPELLATE BOARD This application is being filed for rectification of the mark Bengal Lamps registered under No.895089 in class 11 in favour of the respondent. The learned counsel for the applicant is present and has made his submissions. Neither the learned counsel for the respondent nor anyone on behalf of the respondent is present. 3. The learned counsel for the applicant has also produced before us the history sheet of the mark impugned herein and it has been renewed upto 29.12.2009 and not thereafter. Perhaps this is the reason why there is no appearance on behalf of the respondent. Since they are no longer interested in continuing the registration of the impugned mark, ORA/9/2005/TM/KOL is allowed. The mark which has not been renewed shall stand removed from the register of Trade Marks.
INTELLECTUAL PROPERTY APPELLATEBOARD Guna Complex, Annexe-l, 2nd floor, 443, Anna Salai, Teynampet, Chennai 600 018 (Circuit Bench sitting at Kolkata) ORA/9/2005/TM/KOL TUESDAY, THIS THE 29TH DAY OF FEBRUARY, 2012 HON’BLE Smt. JUSTICE PRABHA SRIDEVAN … CHAIRMAN HON’BLE Shri V. RAVI … TECHNICAL MEMBER M/s Bengal Lamps Limited, 137, Prince Gulam Hussain Shah Road, … Continue reading
INTELLECTUAL PROPERTY APPELLATE BOARD (i) The applicant has applied for the mark on 14.12.2007 for registering the mark “WHITE CRANE” in respect of sewing machine needles claiming user from 01.11.2006. The respondent is a subsequent applicant who applied for registration on 02.05.2008 for the same mark “WHITE CRANE” in respect of sewing machine and their spare parts and the registration was granted on 01.04.2010. The learned counsel submitted that the respondent claimed user from 01.04.2005. The learned counsel submitted that though the applicant’s application is earlier, their application has not been granted registration while the respondent’s application has secured registration. -. For the purpose of this application we are of the opinion that there is prima facie evidence of prior user by the respondent and therefore we do not think the petitioner is entitled to an order of stay. All the questions raised by the learned counsel for the applicant shall be tested at the time of final disposal. This is only a prima facieexpression with regard to user for the purpose of granting interim order.
INTELLECTUAL PROPERTYAPPELLATE BOARD Guna Complex, Annexe-l, 2nd floor, 443, Anna Salai, Teynampet, Chennai 600 018 (Circuit Bench sitting at Kolkata) M.P.No.182/2010 IN ORA/162/2010/TM/KOL THURSDAY, THIS THE 1st DAY OF MARCH, 2012 HON’BLE Smt. JUSTICE PRABHA SRIDEVAN … CHAIRMAN HON’BLE Shri V. RAVI … TECHNICAL MEMBER M/s Paramount Agencies, 5801/2, Chawla Bazar, Sadar … Continue reading
what is the suppression of material fact ?=Constitution of India, 1950: Article 226-Exercise of jurisdiction under-Suppression of material fact by petitioner-Writ petition filed suppressing the fact of filling of suit in District Court and non-granting of interim injunction-However, after filing the writ petition suit was withdraw-High Court declining to entertain the writ petition-Held, though appellant had suppressed a material fact and High Court may be correct that in a case of this nature, Court’s jurisdiction may not be invoked, however, suppression of filing of the Suit is no longer a material fact, and incase another writ petition is filed disclosing all the facts, Court, at that point of time, will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is basic feature of the Constitution-Judgment of the High Court, on facts, shall not operate as res judicata-Judgment Review-Human Right of access to justice-Res judicata. Maxim-Ubi jus ibi remedium-Applicabilitty of. Words and Phrases: `Material facts’-Meaning of in the context of Court’s refusal to exercise its discretionary jurisdiction on petitioner suppressing material facts. Services of appellant, who was a confirmed employee of Indian Council for Child Welfare, a Society registered under the Societies Registration Act, were terminated. She challenged the said order by filing a suit in the District Court with an application for an ad interim injunction. The court notice but granted no ad interim injunction. Soon thereafter, the appellant filed a writ petition in the High Court challenging the termination order. In the Writ petition pendency of the suit was not disclosed. She filed an application for withdrawal of the suit and the District Court permitted the Suit to be withdrawn. Later, a Single Judge of the High Court, declined to entertain the writ petition on the ground of concealment of material fact by the writ petitioner. The intra-court appeal having been dismissed by a Division Bench of the High Court, the Writ petitioner filed the present appeal. On the question : how far and to what extent suppression of fact by court appeal having been dismissed by a Division Bench of the High Court, the writ petitioner filed the present appeal. =Dismissing the appeal, the Court HELD: 1.1. On the one hand, judicial review is a basic feature of the Constitution, on the other, it provides for a discretionary remedy. Access to justice is a human right. A person who has a grievance against a State, a forum must be provided for redressal thereof. The court’s jurisdiction to determine the lis between the parties, therefore, may be viewed from the human rights concept of access to justice. The same, however, would not mean that the court will have no jurisdiction to deny equitable relief when the complainant does not approach the court with a pair of clean hands, but to what extent such relief should be denied is to be considered. [Para 10] S.J.S. Business Enterprises (P) Ltd. v. State of Bihar & Ors., [2004] 7 SCC 166; Dwarka Prasad Agarwal (D) by Lrs. and Anr. v. B.D. Agarwal & Ors., [2003] 6 SCC 230; Bhagubhai Dhanabhai Khalasi & Anr. v. The State of Gujarat & Ors., [2007] 5 SCALE 357; Zee Telefilms Ltd. v. Union of India, [2005] 4 SCC 649 and Hatton & Ors. v. United Kingdom, 15 BHRC 259, relied on. Hatton & Ors. v. United Kingdom, 15 BHRC 259, referred to. 1.2. It is trite law that so as to enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. [Para 11] S.J.S. Business Enterprises (P) Ltd. v. State of Bihar & Ors., [2004] 7 SCC 166, relied on. 1.3. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But when the said dirt is removed and the court is approached with clean hands. The court at that point of time will be entitled to determine the case on merits. [Para 11] Jai Narain Parasrampuria (D) and Ors. v. Pushpa Devi Saraf and Ors., [2006] 7 SCC, relied on. Moody v. Cox, (1917) 2 Ch 71, referred to. Halsbury’s Laws of England, Fourth Edn., Vol. 16, pg.874-876 and Equitable Remedies, Fourth Edn., pg. 5 by Spry, referred to. 2.1. Further, the court would not ordinarily permit a party to pursue two parallel remedies in respect of the same subject matter. But, where one proceedings has been terminated without determination of the lis, it cannot be said that the disputant shall be without a remedy. [Para 18] Jain Singh v. Union of India and Ors., [1997] 1 SCC 1 and M/s. Tilokchand and Motichand & Ors. v. H.B. Munshi and Anr., [1969] 1 SCC 110,, relied on. 2.2. Existence of an alternative remedy by itself, may not be a relevant factor as it is one thing to say that there exists an alternative remedy and, therefore, the court would not exercise its discretionary jurisdiction, but it is another thing to say that the court refuses to do so on the ground of suppression of facts. Ubi jus ibi remedium is a well known concept. A person who comes with a genuine grievance in an arguable case should be given a hearing. [Para 20 and 21] 3. In the instant case, the appellant had suppressed a material fact. It is evident that the writ petition was filed only when no order of interim injunction was passed. It was obligatory on the part of the appellant to disclose the said fact. The Single Judge and the Division Bench of the High Court may be correct that, in a case of this nature, the court’s jurisdiction may not be invoked but that would not mean that another writ petition would not lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ court with a pair of clean hands, the court at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India, The judgment of the High Court, in a case of this nature, shall not operate as a res judicata. [Para 21 and 23] Lata Krishnamurthy, Rekha Pandey, Saurabh Ajay Gupta and Raj Kumar Tanwar for the Appellant. Nikhil Nayyar and Ankit Singhal for the Respondents.=, 2007(5 )SCR904 , 2007(6 )SCC120 , 2007(6 )SCALE293 ,
CASE NO.: Appeal (civil) 2205 of 2007 PETITIONER: Arunima Baruah RESPONDENT: Union of India & Ors DATE OF JUDGMENT: 27/04/2007 BENCH: S.B. Sinha & Markandey Katju JUDGMENT: J U D G M E N T CIVIL APPEAL NO. 2205 OF 2007 [Arising out of SLP (Civil) No. 9283 of 2006] S.B. SINHA, J : Leave … Continue reading
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.
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 … Continue reading
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