DABUR INDIA LIMITED Vs. ALKA AYURVEDIC PVT. LTD.

JUDGEMENT

(1.) THE appellant filed a suit for permanent injunction restraining infringement of trademark as well as the alleged endeavour of the respondent to pass of its goods as that of the appellant by trading the same product under the trademark PACHMOLA. Accounts and costs were also sought for. The suit was contested by the respondent. Interim orders were enduring for the benefit of the appellant by an ad interim order. However, after hearing both the parties the application under Order 39 Rules 1 & 2 of the CPC was dismissed and interim orders vacated vide impugned order dated 6.10.2009. It is this order which is assailed before us. No interim orders were granted at the stage of admission of the appeal and as a result parties have continued to trade in their respective products.

(2.) THOUGH more than three (3) years have elapsed, the suit has not progressed much for trial. We have perused the original suit record and it shows that the first witness of the appellant is yet to be cross -examined though the affidavit of evidence were filed and now some witnesses are sought to be summoned.

(3.) THE learned Single Judge has found that the aspect of infringement of trademark could not really proceed further because neither has the appellant filed proceedings for cancellation of the trademark PACHMOLA (we are informed that the same have been filed subsequently) nor are the necessary pleas raised in the plaint or the prayers made. The plaint has, thus, been examined as one only of passing off. On the basis of the alleged concealment of material facts, injunction has been declined but while doing so there are observations even qua the merits of the passing off action. In fact, the learned Single Judge has opined that even assuming that the appellant did not have knowledge of who was the owner of the registered trademark the previous proceedings initiated by the appellant did show the registration of that mark was known and was, at least, known after the written statement was filed whereafter also no proper steps were taken. Even the replication is found to be deficient in terms of proper pleadings as rebuttals.