The Delhi High Court docket has observed that a trademark proprietor simply cannot drag a Defendant to a number of fora, becoming a higher court or before a court docket of coordinate jurisdiction, when the make any difference is pending in advance of the initially Courtroom, specifically when the make a difference is portion listened to ahead of the very first Court, simply to discover a discussion board the place it is ready to get relief. Justice Pratibha M Singh included that ideas such as…
The Delhi Large Courtroom has noticed that a trademark operator cannot drag a Defendant to various fora, currently being a bigger courtroom or just before a courtroom of coordinate jurisdiction, when the subject is pending ahead of the first Courtroom, in particular when the make a difference is component read prior to the very first Courtroom, basically to discover a discussion board exactly where it is ready to get reduction.
Justice Pratibha M Singh additional that ideas this kind of as res judicata, res subjudice, bar less than Purchase II Rule 2 of CPC, forum searching, which use in standard to civil and criminal proceedings would also be applicable to trademark fits as effectively.
The Court docket was dealing with a fit looking for lasting injunction restraining the Defendant from infringement of trademark, passing off, unfair levels of competition, rendition of accounts of gains/damages, delivery up and other reliefs. It was the Plaintiff’s scenario that the defendant was infringing on its registered trademark ‘LETROZ’ by working with the mark ‘LETERO’ in regard of its medicinal and pharmaceutical preparations.
Before the make any difference could be read on merits, a question was place to the counsel for the Plaintiff as to how the existing match would be maintainable in as considerably as for this quite trademark, an previously fit, has already been submitted by the Plaintiff versus the really identical Defendants before Trial Courtroom and the exact was still pending.
It was argued on behalf of the plaintiff that each sale by the Defendants constituted a fresh new lead to of motion and so, inspite of the pendency of the initially suit in advance of the trial court docket, the match just before Significant Court docket would also be maintainable.
On the other hand, it was argued on behalf of the the Defendants that the trigger of action in both equally satisfies was equivalent and that the earlier was in reality portion-listened to in advance of the District Court docket in the refreshing injunction software, as recorded in the purchase dated 30th March, 2021. Thus, it was submitted that submitting of the existing make a difference in another Court was a gross abuse of system.
Whilst the Court docket was of the perspective that each time there is a fresh induce of action, a contemporary match would lie, it included that the same has to be inside of the 4 corners of legislation.
The Courtroom claimed that the plea of continuing bring about of action cannot be stretched to an impermissible limit so as to allow numerous fits amongst the exact same functions relating to the very same trademarks in distinctive fora.
“This would represent distinct discussion board buying, given that if the Plaintiff’s submission is recognized, a social gathering would be permitted to file many fits in different Courts until finally it hits upon a forum the place reduction is granted in its favour. In the existing case, as recorded earlier, the reliefs sought in both the satisfies in the current matter are similar, besides for the relief of rendition of accounts which has now been projected as a relief for damages,” the Courtroom noticed.
The Courtroom even further observed that the bar of looking for only possibly rendition of accounts or damages are unable to be circumvented by submitting two separate suits. It included that it would be impermissible for the Plaintiff to prevent the impact of sec. 135(1) of the Emblems Act, 1999, by looking for to distinguish the two satisfies, by boasting that 1 is a go well with for rendition of accounts and the other is a accommodate for damages. Thus the Court stated that only one aid can be claimed for infringement of the exact same mark, both damages or rendition of accounts.
On the part of non-grant of relief in the initial fit in the kind of interim injunction by the Industrial Courtroom, the Court docket observed:
“Admittedly, the get sheets of the Commercial Court demonstrate that the issue has been adjourned from time to time unnecessarily. But can the Plaintiff rely on this simple fact as the sole ground to retain the current match? The solution is an emphatic NO. A perusal of the get sheet of the Demo Court docket as recorded over exhibits that the Professional Court is seized of the make a difference and submissions have been partly read on the injunction software. The entertaining of this accommodate in advance of this Court, would in result mean that the Plaintiff would be permitted to argue yet again on deserves and seek out an interim injunction here, whilst the same matter is aspect-listened to in advance of the Commercial Court docket.”
“In check out of all these factors such as identification of the induce of action, a number of reliefs being impermissible beneath Segment 135 of the Emblems Act and the present suit becoming submitted in the course of the pendency of the very first fit, if the current suit is entertained by this Courtroom, this would plainly really encourage forum procuring by a litigant who has been not able to get aid in a specific forum and hence decides to knock the doors of this Court docket.”
Terming the make a difference as a common situation of forum procuring and a mis-adventure, the Court docket explained that in so far as the hold off in adjudication in the Professional Court, any grievance which the Plaintiff experienced in regard of the delays caused in the 1st suit, the Plaintiff would be absolutely free to seek its therapies in accordance with law in regard of the reported hold off.
The Court docket was of the see that when the Demo Court was seized of the exact same extremely make a difference in between the same very functions, the present go well with could not be entertained on the basis of the plea that there was a new induce of motion.
“This would be a gross abuse of the process and would in actuality be opposite to general public plan. If this sort of a suit is entertained, it would really encourage litigants to indulge in forum searching which can not be the aim of the provisions of Area 10 and 11 of the CPC. This would also consequence in needless load on the Defendant who would be forced to incur repeated lawful expenses and undue harassment. This kind of a training course of motion are not able to be condoned by the Courtroom,” the Court stated.
At the outset, the Court docket famous that this kind of point out of affairs experienced arisen mainly because of the reality that the Presiding Officer who had read the subject and had to move orders selected to hold off the choice in the interim injunction software indefinitely right until he obtained transferred from the claimed publishing.
“This Court has repeatedly emphasised on the need for Judicial Officers to pronounce orders after hearing arguments and not releasing matters. In actuality, whenever transfer of a Judicial Officer is effected, if orders are pending to be handed in a make any difference that the explained Judicial Officer is seized of, a be aware is issued to the influence that the order has to be pronounced,” the Courtroom stated.
Accordingly, the Court said that the current judgment be brought to the detect of the Inspecting Committee of the concerned Judicial Officer by the worthy Registrar Typical of this Court docket.
“Duplicate of this get be sent to the involved Inspecting Committee by way of the deserving Registrar Basic, as also for circulation to all judicial officers in the Trial Court docket,” it included.
The match was dismissed as not staying maintainable.
Situation Title: Sunshine PHARMA LABORATORIES LTD v. HETERO Health care LTD & ANR.
Citation: 2022 LiveLaw (Del) 314
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