KAMRUDDIN I. MEHSANIYA Vs. SARAH INTERNATIONAL

JUDGEMENT

(1.) By an ex-parte order dated 24th July 2020, this Court was pleased to grant ad-interim relief in terms of prayer clauses (a) and (c) which read as under :

(2.) Court Receiver was appointed and he was directed to seize and seal all offending products and related items found in the premises of defendant or at any other place.

(3.) Against this order, defendant took out an application under Order 39 Rule 4 of the Code of Civil Procedure 1908 seeking the said order dated 24th July 2020 to be vacated. Defendant also filed reply to the Interim Application of plaintiff. Defendant came with essentially two grounds, (a) that there has been misrepresentation by plaintiff at the time of making application for ad-interim relief without notice, which misrepresentation was apparent from certain portions of the order and pleadings also; and (b) that KIMIA is a descriptive word and therefore, plaintiff's registration is bad in law and, therefore, plaintiff is not entitled to any ad-interim relief. At the stage of rejoinder, counsel for defendant also relied upon Section 35 of the Trade Marks Act 1999 (the Act) and submitted that defendant has been using KIMIA as a bonafide description of variety of dates and under Section 35 plaintiff is not entitled to interfere with defendant's use of KIMIA as a bonafide description of the character or quality of his goods and services. The counsel for defendant submitted that statutory defences under Section 35 are always available and are not wiped out.