Gujarat High Court
Talod vs Bahuchar on 12 October, 2010
Author: K.M.Thaker
Bench: K.M.Thaker
Gujarat High Court Case Information System
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AO/108/2009 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 108 of 2009
With
CIVIL
APPLICATION No. 11453 of 2009
In
APPEAL FROM ORDER No. 108 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE K.M.THAKER
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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TALOD
GRUH UDHYOG - Appellant(s)
Versus
BAHUCHAR
GRUH UDYOG - Respondent(s)
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Appearance
:
MR
DP KINARIWALA for Appellant(s) : 1,
NOTICE SERVED for
Respondent(s) : 1,
MR AKSHAY A VAKIL for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 12/10/2010
ORAL
JUDGMENT
This Appeal from Order is directed against an interlocutory order dated 13.02.2009 passed by the learned trial Court below Exh.5 in Regular Civil Suit No.5 of 2008. The appellant herein-original plaintiff filed the said suit alleging infringement of its registered trademark by the respondent herein-original defendant.
Along with the suit, the appellant-original plaintiff also filed an application for interim relief i.e. application Exh.5.
The said application came to be rejected by impugned order dated 13.02.2009 by which the learned trial Court declined to grant interim relief against present respondent.
The original plaintiff had prayed for interim relief seeking restrain order against the original defendant present respondent. The relief prayed for reads thus:-
(A) That this Hon'ble Court be pleased to issue a temporary injunction restraining the defendant, its servants, agents, stockiest, and/or distributors from using the trade mark TALOD in respect of their instant mix products so as to infringe the plaintiff's registered trade mark TALOD bearing Registration No.659930 and 1378012 both in Class 30 under the Trade Marks Act, 1999.
(B) That this Hon'ble Court be pleased to issue a temporary injunction restraining the defendant, its servants, agents, stockiest, and/or distributors from using the artistic work as appearing on the suit packing polyethylene bag of their goods TALOD and thereby infringing the copyrights of the plaintiff in the artistic works of the plaintiff's suit polyethylene bag in any manner whatsoever under the Copyrights Act, 1957.
(C) That this Hon'ble Court be pleased to issue temporary injunction restraining the defendant, its servants, agents, stockiest and/or distributors from manufacturing, marketing, offering for sale or otherwise dealing in any other manner whatsoever in instant mix bearing the similar trade dress and trade mark of instant mix products so as to pass of as the goods of the defendant as those of the plaintiff.
(D) That pending hearing and final disposal of the suit this Hon'ble Court be pleased to issue ad interim and/or interim temporary injunction restraining the defendant, its agents, servants, stockiests and/or distributors from manufacturing, marketing, offering for sale or otherwise dealing in any manner whatsoever in goods sold under trade mark, which is identical and deceptively similar to the plaintiff's trade mark so as to infringe the plaintiff's registered trade mark.
(E) That this Hon'ble Court be pleased to order the defendant to pay the costs of this application to the plaintiff.
(F) That this Hon'ble Court be pleased to pass such further and other reliefs as may be deemed fit and proper in the interest of justice.
By the aforesaid impugned order dated 13.02.2009, the Court did not grant the said relief. Hence, present appeal.
By order dated 07.09.2009, the Court (Hon'ble Mr. Justice M.R.Shah) admitted the appeal. On the same date, a separate order came to be passed on the Civil Application praying for interim relief against the impugned order, by which the Court recorded that since the appeal was placed for final hearing after 3 weeks, the application for interim relief was not pressed and accordingly, it was disposed of.
The orders passed on the appeal while admitting the appeal and on the Civil Application, read thus:-
ORDER IN APPEAL Admit.
Shri Akshay Vakil, learned advocate waives service of notice of admission on behalf of the respondent.
In the facts and circumstances of the case and as the dispute is with respect to infringement of trade-mark, Registry is directed to notify this Appeal From Order for final hearing on 25th September, 2009. To be placed in the 1st Board.
ORDER IN CIVIL APPLICATION As the Appeal From Order is fixed for final hearing on 25th September, 2009, Shri R.R.Shah, learned advocate appearing on behalf of the applicant does not press the present application, at this stage.
If for some reason(s), Appeal From Order is not heard, it will be open for him to file a fresh application and pray for injunction which can be considered in accordance with law and on merits.
With this, present application is dismissed as not pressed, at this stage, with above liberty.
As can be seen from the order passed on the Civil Application, the Court had granted liberty to the appellant to file fresh application for interim relief if the appeal was not heard finally as per the order dated 07.09.2009.
It appears that since the appeal could not be taken up for final hearing, the appellant-applicant filed fresh application seeking interim relief against the impugned order below Exh.5 passed by the learned trial Court.
The application appears to have been filed in October 2009. By order dated 26.11.2009, the Court (Hon'ble Mr. Justice D.A.Mehta) directed the application to be listed along with appeal on 08.12.2009.
Even thereafter, the appeal could not be taken up for final hearing.
Today, the application is listed for hearing and orders. Considering the fact that suit for infringement of trademark is pending since 2008 and the appeal against the interlocutory order is pending in this Court since 2009, it appears appropriate to dispose of the appeal as well as civil application by following order.
Since, the learned advocate for the contesting parties do not have any objection if following order is passed, they have jointly requested not to record reasons for passing the following order.
It is clarified that in view of the submissions and request made by the learned counsel for the contesting parties, the detailed reasons for the present order are not recorded.
It is, further, clarified that in view of the submissions by the learned counsel for the contesting parties, the impugned order is not examined in detail on merits.
With the aforesaid clarification, following order is passed.
(A) The learned trial Court will hear and decide the suit being Regular Civil Suit No.5 of 2008, as expeditiously as possible, preferably by 31.12.2011.
(B) In the meanwhile, i.e. until the suit is finally disposed of as aforesaid, starting from 01.09.2010, the original defendant will file half yearly statements of Accounts giving the details (all figures) about the total production and sale of the disputed products i.e. only those products in respect of which infringement of registered trademark is alleged by the original plaintiff in the suit before the learned trial Court.
Such statements will be filed on the record of the trial Court on half yearly basis, starting from 01.09.2010, as aforesaid.
(C) The learned trial Court will hear and decide the suit on its own merits without being influenced by the fact that the appeal was admitted against the impugned order and/or without being influenced by the impugned order below Exh.5 and on the basis of the evidence, which may be brought on record by the contesting parties.
With the aforesaid clarification and direction, the appeal as well as the Civil Application are disposed of.
[K.M.Thaker, J.] kdc Top