SCOTCH WHISKY ASSOCIATION Vs. KHODAY INDIA LIMITED

JUDGEMENT

(1.) This is the defendant's chamber summons seeking an order rejecting the plaint and dismissing the suit as covered and concluded by the judgment of the Supreme Court dated 27.5.2008 reported in (Khoday Distilleries Limited Now known as Khoday India Ltd. v. Scotch Whisky Association, 2008 10 SCC 723in an appeal filed by the defendant against the plaintiff from the order and judgment of the Division Bench of the Madras High Court and for a declaration that the above suit does not survive in view of the said judgment.

(2.) This is an action for passing off. The plaintiff filed the suit inter alia for the following reliefs:

(3.) Mr. DeVitre submitted that the cause of action in this suit does not survive in view of the judgment of the Supreme Court. He submitted that the cause of action, if any is barred by the principles analogous to res judicata as the cause of action in the suit and in the original proceedings from which the matter reached the Supreme Court is the same. According to him the issues of acquiescence and waiver raised by the defendant and the issue whether the defendants marks, devices and labels are deceptively similar to the plaintiffs marks or are likely to cause confusion have been decided by the Supreme Court in the said judgment. Thus, he submits the suit is liable to be dismissed on the ground of issue estoppel. The decision of the Registrar in rectification proceedings is binding between the parties in all proceedings including the present suit. It is not permissible for the parties to lead additional evidence in this suit in view of the judgment of the Supreme Court which was delivered in the proceeding for rectification commenced before the Registrar of Trade Marks. In the circumstances, Mr. DeVitre submitted that the suit is liable to be rejected under Order VII, Rule 11 read with Section 151 of the Code of Civil Procedure.