Kiran Kumar vs Shri Lakshmi Venkataramana on 28 May, 2009

i58. H to be aggxticvcd
by the se’1AidV order, Comt.

5, P@§3;DinéshV””i{u1:fi.ar, learned counsel for the

V’ on” 1j¢fe1i;ii1Tg”toV the facts arising in the present case

T. the trial Court has referred to the

dacxgfiaentaijfié-‘I-3:-éideaxce which had been placed before the U13’ 1

has come to a definite conclusion that the

A “ii have been markefing thc: malt powder in the I}3II1(3:S

of”; ‘Sri Raghavendra Malt’ and ‘Sri Raghavendra Badami

u feast’ finm the year 198? and on noticing the contenfions

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put forth by the defendant has ultinaaiely held

plainfijf has made out a prima facie case. _’_£’ix;eu .

counsel would further: contend that when the ll ” 2

come to the conclusion that the primajfacie ‘ease :’f:–ee’31_’

made out and that the trade the 5

registered trade mark, there Was%io,Vo£1;_er of)’iienv.:forvVfthe trial
Court, but to injunct trade
mark of the In a..catee. question of
considering of in any manner

-to carry on the business even
during Jssuit is not sustainabie and

therefore the o1″der”eal1e’ fol: interference. In oider to jusfify

fiVfi1t’: Sa. id ieonltegttion, learned counsel would refer to the

Adoeumentaxfy eitidenoe in detail.

Sudhakar Pal, learned counsel for the

VA llfteegiendent however sought to justify the order passed by the

The learned counsel would contend that in a

ll relating to trade mark, it is incumbent on the tnal’

Court to apply the same pzinciples that are applicable to the

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grant or rejection of an ozder of temporary injunct_ion’ V.

such all the three tests of prima facie

convenience and htmparahie . fog: corzeiiiexafien.

The Iearned counsel would point out thehinhstazxt

even though the trial Court hescozee ‘£.he’cox§c1tu§ion that ‘V

the plainfifi has made out a the espect of
balance of convenience _bce’nV;:oi11;tirehens.iveEy dealt with
by the tfia} 1e:fe15’enee binuhng decisions and
when the has a _decision based on the
earlier iiecieioiis?-“.01: the same does not call for

interferenhce-._.L” . . ,.

_7 In jightof thefivai contentions, a perusal of the

‘~ insofar as the issue Ielatjng to the

V ‘g cm: ..p::’imn a faeie case, since it has been held in

fatlonf of and since the same has not been cafled

question by the defendants, it is uxmecessary to advert to

A .,?_fi:ath”aS;)ect of the matter and it would be necessary to

exeunine the eorrectnessiof the ultimate ortier passed on

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such finding relating to the prima facie case. Firstly, thefact

that even in a case relating to trade mark, the

would be bound to appiy the tripod test beifdre K

Injection of temporary injunction canndt’ be

this aspect of the matter is Ahweili ” by n

pronouncements of the Hon*nle
in this background, it xveu1d«..bfle as to
whether the trial eoming to the
conclusion on _eennen.tence.

8.” :_4ti1e””oV}.:der of the trial Court would

indiczegiev thattthe has referred to this aspect from

_ considering this aspect of the

has made reference to the judgments

of ‘income to the conciusinn that even in the ease

‘bade being registered, the question relating to the .

of convenience would have to be eonsidered and the

K mere estabiishing of pxima facie case would not be sufficient

‘4 tn injunet the defendants. Having neticed the legal position,

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the trial Court has referred to the fact that even

p1a:intifi’ has got the trade mark registered in theéyeet *

the defendants have placed materials héefoted K x

indicate that they have also filed thei1::’_”afip1tc:efioti

registration of their trade mark’ 200’c3?;

9. The important aspeet consideration in the

present case is the earliei_”x::atu._t*e of the .bnsiness ooinmenced

and the conduct of the pa.I1:ie€;_.V baa’ 1 Court

has maigle notice that even though the
plaintiff of puma” facie case that they

had eo~m;nencedVV’tiE1e’V’b1::siness in the year 1987 the

the defendant aiso would indicate

Atheg eotemeneezeent of the business is almost

cont;:n1po:”eneot1s and in this backgound, the conduct and

mégzzzfxer in which the injunction has been sought is

Therefore, the trial Court has referred to the

K L’ heoizxtention of the plainfifi that after the registration of the

trade mark in the year 2604, a notice was issued to the

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defendants on 11.2.2004. But, ultimately the suit been

filed on 24.10.2007. In a fact of this nature, I am _

that even though the Rearmed coungsel for dd ” =

herein has strenuously contended that.-L1. fiaédmstter Ad

to trade mark, the injunction’ is to he ‘ is ;

established that the trade markvuuis other
person is infringing the the decisions of
this Coult noticed by H_t};:1’e._ ;% _h7ero;:~e refusing
injunction, the: not taking any
action __2€){)”7V;.vou1d also be relevant for
the purpo’st_:L4of the interlocutory application

inasmuch. as ‘V when a ‘V’dis(::etio::1a1y relief is granted, the

such discretionary relief more

” hj’g’,i.¥way of injunction should have to be

estetblislited-‘_;’ in the instant case, when the p}a1’ntiff

“thAemse”h*.eAs have allowed the defendants to carry on the

i’hjt.1s§,nfess despite knowiedge of the defendants carrying on

business and further when theee aspects are to be

considered on its merits with regard to the nature of the

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business and more particularly considering the fact

plajntifis have also sought for rendition of _

Hence in the facts of the present case, i am of t1A1at_: ff

restraining the defendants at this stsge woeldfnofi. f is

10. It is no doubt has
imported certain haxdshigj that may
be faced by the defendants industry etc.,
but the sa1:ie””;;;ie’V not; this f Court.
the trial Court, the trial
Court was the injunction, since in any

eventeeven inuthe ease, if a time frame is fixed to the

the entire matter on its merits,

ed~u1£i happen is that the defendants would

con1j1_1uetc the business in the same name for a further

shoxt dmjéition. This View is taken by me, more paxtictfiarly

the fact that the plaintifi” themseives had

such a course from the year 2004 despite their

stmztluous contention that their trade mark was registered in

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the year 2004 and they had knowledge of the business of the

defendants. V

11. Therefoie, insofar as the order dated 20,6,2Qt)8,

passed by the ma” 1 Court, I do not see reason to .

as such I am of the View that the present appeal of it ” =

merit. However, the trial Court is it

dispose of the suit on its merits as ex1jeditious£y”§is

but in any event, not later than ‘montI:is’ date of

production _of:’of -aide: before the triai Court. The

learned before the trial Court shall

co–opex-::1$”.1?:. with the in early disposal of the suit.

. ‘A . the LCR to the trial Court forthwith.

V above, the appeal stands disposed of.

No oznderns eosts.

Sd/-3
Iudge

Aka] bins