Calcutta High Court (Appellete Side)
M/S Sudarshan Seeds Pvt Ltd vs Vishal Krishi Products Pvt Ltd on 1 November, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
1
Serial No.2.
November 1, 2017.
SG
FMA 1327 of 2017
(FMAT 372 of 2017)
with
CAN 3267 of 2017
M/s Sudarshan Seeds Pvt Ltd
-versus-
Vishal Krishi Products Pvt Ltd
Mr Debnath Ghosh
Mr Mohit Gupta
Mr Chandrakant Khuswaha
... for the appellant.
Mr Chanchal Kr. Dutt
Mr Soumya Ray Chowdhury
Mr Asish Ganguly
Ms Krishna Mullick
... for the respondent.
The plaintiff in what appears to be a passing-off action complains of the refusal by the trial court to grant an interlocutory injunction to restrain the defendant's use of unregistered mark 'Swarn Ganga' in respect of paddy seeds.
There is no dispute that both the appellant and the respondent manufacture and sell paddy seeds. The appellant has a registered mark by the name of 'Tiger Brand' and the appellant also sells paddy seeds under the mark 'Swarna Ganga' in conjunction with the mark 'Tiger Brand'. According to the appellant, 'Swarna Ganga' was first used by a proprietorship concern since or about 2002 and it was assigned to the appellant company upon the appellant company being formed sometime in 2006.
2The essence of the appellant's case is found at paragraph 5 of the plaint:
"5. That the plaintiff starts (sic., states) that in order to protect the statutory rights under the Trade Marks Act, 1999, the Plaintiff had duly applied for registration of the trademark "TIGER BRAND SWARNA GANGA'' in relation to seeds in the year (sic.) 24th January 2006 complying with all rules and regulations and obtained the Registration Certificate on 25th February 2008."
Thus, the appellant's case before the trial court was that it was the registered proprietor of the mark 'Tiger Brand Swarna Ganga' and it was entitled to an injunction against the respondent herein for the respondent using a part of such registered mark in selling paddy seeds.
It has now been candidly admitted on behalf of the appellant that the registration that the appellant enjoys is only in respect of label mark 'Tiger Brand'. It is also evident that the deed of assignment executed by the relevant proprietorship concern in favour of the appellant also pertains to 'Tiger Brand'.
Though elsewhere in the body of the plaint the allegation is that the defendant was seeking to pass off its goods as those of the plaintiff, the principal case is one of infringement on the basis of the appellant's alleged registration of the mark 'Tiger Brand Swarna Ganga'. Such aspect of the appellant's assertion in the plaint is now accepted to be inaccurate.
In view of the false statement made by the appellant in the plaint, possibly to make it easy for the appellant to obtain an ad interim order, the final relief has been appropriately declined to the 3 appellant. The order impugned does not call for any interference, though the ground indicated here does not find mention in the order impugned.
However, nothing in this order will prevent the appellant herein to prosecute the suit and urge whatever grounds may be available to the appellant in accordance with law.
FMA 1327 of 2017 and CAN 3267 of 2017 are disposed of without interfering with the order impugned.
There will be no order as to costs.
Certified website copies of this order, if applied for, be urgently made available to the parties upon compliance with the requisite formalities.
( Sanjib Banerjee, J. ) ( Sabyasachi Bhattacharyya, J. ) 4