GOLDMINES TELEFILMS PVT. LTD Vs. ACHLA SABHARWAL

JUDGEMENT

(1.) The subject matter of this Appeal is the trademark 'Covishield'. Both, the Appellant- Cutis Biotech and the Respondent- Serum Institute of India Pvt. Ltd. have applied for registering this trademark, and their applications are pending. Cutis Biotech filed a suit against Serum Institute in the Commercial Court at Pune. In this suit, Cutis Biotech sought an interim injunction to restrain Serum Institute from using the trademark 'Covishield1 and maintain the accounts regarding the sale. The learned District Judge/ Commercial Court rejected the interim application. Hence Cutis Biotech is before us with this Appeal under section 13 of the Commercial Courts Act, 2015.

(2.) We have heard Mr. Abhinav Chandrachud and Mr. AdityaSoni, learned Advocates for the Appellant- Cutis Biotech and Dr. Birendra Saraf, learned Senior Advocate for the Respondent- Serum Institute.

(3.) Neither Cutis Biotech nor Serum Institute have a registration for the trademark- 'Covishield'. Sub Section (1) of Section 27 of the Trade Marks Act, 1999 mandates that no person shall be entitled to institute any proceeding to prevent or recover damages for the infringement of an unregistered trademark. However, sub-section (2) thereof saves the right to take action against any person for passing off his goods or services as the goods and services of the applicant and preserves the remedies to prevent passing off actions. Since Cutis Biotech does not have a registered trademark, it has based its case on the action of passing off.