VIVEK KOCHHER Vs. KYK CORPORATION LTD

JUDGEMENT

(1.) The appellants have filed the present intra-court appeal under Sec. 13 of the Commercial Courts Act, 2015 impugning a judgment dtd. 6/11/2019 (hereafter the 'impugned judgement') passed by the learned Single Judge. By the impugned judgment, the learned Single Judge had dismissed the suit filed by the appellants/plaintiffs [being CS(COMM) 152/2018] and partly allowed the Counter Claim (being Counter Claim No.77/2009) instituted by respondent no.1 (hereafter 'KYK Corporation') and granted the decree of permanent injunction, as sought for, in terms of the prayer clause nos. (i) to (iii).

(2.) The learned Single Judge had passed the impugned judgment primarily on the basis of an order dtd. 10/2/2012, passed by the Intellectual Property Appellate Board (hereafter 'the IPAB') allowing KYK Corporation's application for cancelling the registrations of the trademark "KYK" (hereafter 'the Trademark'), in favour of the appellants/plaintiffs. The Trademark is a word mark. The impugned judgment also notes that the appellants had preferred a writ petition impugning the order dtd. 10/2/2012, passed by the IPAB. However, the said petition [being W.P.(C) 2496/2012] was also dismissed by a judgment dtd. 3/11/2017.

(3.) The IPAB had allowed KYK Corporation's application for rectification of the Register by removal of the registrations of the Trademark granted in the appellants' favour. However, the appellants contend that the same did not establish that they had passed off their goods as that of KYK Corporation. KYK Corporation was required to establish that it is the prior user of the Trademark in question and merely because the IPAB had cancelled the registration in favour of the appellants, it did not entitle KYK Corporation to a decree of permanent injunction restraining the appellants from passing off or using the Trademark. The learned counsel for the appellants also contends that the learned Single Judge had not returned findings on the issues as framed and the same is contrary to the provisions of Order XX Rule 5 of the Code of Civil Procedure, 1908 (hereafter 'the CPC').