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20. Learned counsel for the plaintiff invited my attention to the photographs annexed at Exhibits 'A' and 'B' to the affidavit dated 22 nd February 2017 filed by the plaintiff. He also invited my attention to the ad-interim order passed by this Court on 5th May 2014 in terms of prayer clauses (b) and (f) of the notice of motion and prima facie findings rendered by this Court in the said order. He submits that inspite of the said ad-interim injunction granted by this Court, the defendant continued to sell the impugned products in market in blatant violation of the said ad-interim order. He submits that the impugned suit products of the defendant were being sold in Ludhiana openly in the market. In the said affidavit, the plaintiff has alleged that on 14th February 2017, the deponent of the said affidavit had visited a shop mentioned in the said affidavit in Ludhiana where the impugned suit products of the defendant were being sold.

ppn 14 nms-2695.16(j).doc

27. Learned counsel for the plaintiff placed reliance on the judgment of the Supreme Court in the case of Midas Hygiene Industries P.Ltd. & Anr. Vs. Sudhir Bhatia & Ors., reported in 2004 (28) PTC 121 (SC) and in particular paragraph 5 and would submit that in cases of infringement either of trademark or of copyright normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. He submits that the defendant initially started using the pirated trademark of the plaintiff which was subsequently stopped by it and thereafter it started using the registered trademark of the plaintiff dishonestly. He submits that inspite of ad- interim injunction granted by this Court, the defendant has continued adoption of registered trademark of the plaintiff with dishonest intention and thus it has become necessary to confirm the ad-interim injunction granted by this Court by an order dated 5 th May 2014 and other reliefs in the notice of motion be granted.

56. It is submitted by the learned counsel for the defendant that in view of the disclaimer of the word "kwik," the said disclaimed part is not within the protection provided under Section 30(2) of the Trade Marks Act, 1999 and thus no injunction can be granted by this Court against the defendant from using the mark "kwik." He submits that though the plaintiff has referred to the disclaimer in the plaint, such disclaimer is not pointed out to this Court when the plaintiff had obtained ad-interim injunction against the defendant. He submits that if the plaintiff would have pointed out such disclaimer to this Court, ad- interim order granted by this Court in favour of the plaintiff would not have been granted. He submits that the registration, if any, granted in favour of the plaintiff would be at most for the word "FEVI."

82. Full Bench of this Court in the case of Lupin Ltd. Vs. Johnson & Johnson (supra) has held that Section 124(5) of the Trade Marks Act, 1999 expressly permits the Civil Court to make an interlocutory order including an order granting an injunction, directing account to be kept, appointing a receiver or attaching any property during the period of the stay of the suit. It is held that the provisions of Section 124 contemplates that if the defendant's plea regarding validity of the registration of the plaintiff's trade mark is frivolous, the Court is not bound to grant the defendant time to file rectification proceedings before the Appellate Board and even if such proceedings are pending, the Civil Court can grant injunction in favour of the plaintiff in the suit for infringement of the plaintiff's trade mark. This Court has held that there is no express or implied bar in the Trade Marks Act, 1999 to completely ppn 39 nms-2695.16(j).doc take away the jurisdiction and power of the Civil Court to consider the challenge to the validity of registration of the trade mark at the interlocutory stage by way of a prima facie finding on such issue. It is held that a Court hearing and deciding an interlocutory application for injunction during the pendency of the suit is required to consider: (i) prima facie case; (ii) balance of convenience; and (iii) where an irreparable injury and injustice would be caused to the Plaintiff if any interim injunction is not granted.