When injunction should be granted in trade mark infringement and passing off cases:

Granting an injunction (including ex-parte) is a discretionary power of the court.

Section 135(2) of The Trade Mark Act, 1999 says that order of injunction may include ex-parte injunction. Now, if Section 135(2) is read with section 29(3) of The Trade Mark Act, 1999.

Section 29(3) says that the court shall pressure that it is likely to cause confusion on the part of the public provided that the case falls under section 29(2)(c). So, we need to read section 29(2)(c) which says that a registered trade mark is infringed by a person who used in the course of trade, a mark which is identical with the registered trade mark for identical goods. It is clear that when the identical mark is used for identical goods in the course of trade, section 29(3) is invoked. 

Reading of both Section 135(2) and Section 29(3) of the Act increases the chances of obtaining the EX- parte injunction as there is command of legislature for courts to presume that there is likelihood of confusion on the part of the public when the identical mark is used in the course of trade for identical goods by an infringer or by a defendant. 

I would like to refer the landmark judgments of Hon’ble Supreme Court in respect of ‘identical marks’. What Hon’ble Supreme Court held when the mark of the defendant is identical to that of the plaintiff in the case of infringement and passing off action is as under. 

1. Kaviraj Pandit Durga Dutta Sharma v. Navaratna Pharmaceutical Laboratories reported in AIR 1965 980 where the two marks are identical, no further questions arise, for then infringement is made out (Para No.20). In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant’s mark is likely to deceive, but where the similarity between the plaintiff’s and the defendant’s mark is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff’s rights are violated.  (Para No.21).

2. In the case of Parle Products (P) Ltd. v. J. P. & Co., Mysore reported in AIR 1972 SC 1359, In paragraph no.8, Hon’ble Supreme Court reiterated principle laid down in paragraph no.21 in case of Kaviraj Pandit Durga Dutta Sharma v. Navaratna Pharmaceutical Laboratories reported in AIR 1965 980.

3. ) Ruston & Hornsby Ltd. v. Zamindara Engineering Co. reported in AIR 1970 SC 1649 – Para No.7.   In an action for infringement where the defendant’s trade mark is identical with the plaintiff’s mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion.

4. Supreme Court in the case of Laxmikant Patel v. Chetanbhai Shah – It is a case of passing off action. Para No.14 – wherein Supreme Court held that “once a case of passing off is made out, the practice is generally to grant a prompt ex-parte injunction followed by appointment of local Commissioner, if necessary.”

To conclude it can be said that, considering the ratio laid down by Hon’ble Supreme Court in the above mentioned cases, and in accordance with the facts of the case, injunction including ex-parte injunction should be granted if it is a just, proper and fit case to grant injunction. 

Chirag Bhatt 

 IP Advocate 

9824025041

 

 

              

Whether an absconder is entitled for anticipatory or regular bail?

  I am told to write an article or to make a blog on the topic, titling, “whether an absconder is entitled for anticipatory or regular bail? “Hence, this article / blog. 

 So first of all, it is required to know that who can be considered as absconder or what is the definition of absconder?  

There is no specific definition given or defined in Cr. PC in respect of the term “absconder”.   

Section 82 of Cr. P C says about the proclamation for the person absconding and section 299 says about record of evidence in absence of accused.  

 As per dictionary meaning –  (a) Abscond means to go away suddenly and secretly in order to escape from somewhere (dictionary – Cambridge.org).  (b) According to merrian-webster.com observed means to deport secretly and hide oneself.  

1) Proclaimed Offender:  

As per section 82(4) of Cr. P.C. if a case falls under the sections of IPC mentioned in section 82(4), the court may declare an accused as a proclaimed offender and not otherwise.  Thus, when a criminal case does not invoke the sections mentioned in section 82(4) of Cr. P.C., the accused of that case cannot be considered as a proclaimed offender.  The judgment in this regard is –   Arunkumar Parihar v/s State (Govt. NCTD) High Court of Delhi Cri. M.C. No.863/2021 date of decision 26/03/2021 para no.2 .   

2) Proclaimed offender is not entitled for anticipatory bail   

The following judgments say that the proclaimed offender is not entitled for anticipatory bail.

• Hon’ble Supreme Court in the case of Lavesh v/s State (nct of Delhi) 2012 (8) SCC 730 in para No.10 has held that “an absconder or the proclaimed offender is not entitled for anticipatory bail and observed that from these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declare as absconder.  Normally, when the accused is absconding and declared as a proclaimed offender, there is no question of granting anticipatory bail.  We reiterate that when a person against whom a warrant has been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of section 82 of The Code is not entitled the relief of anticipatory bail.”  •

 In the case of State of Madhya Pradesh v/s Pradeep Sharma, AIR 2014 SC 171, Hon’ble Supreme Court reiterated the principle laid down in Lavesh case and held that “if any one is declared as an absconder / proclaimed offender in terms of Section 82 of The Code, he is not entitled for anticipatory bail.  The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not co-operated with the investigation, he should not be granted anticipatory bail.  •

 Jagtar Singh v/s Satendra Kaur @Bhavana Grover 2002 (Cr. L R (SC) 807 para No.2. “…………Normally, when the accused are absconding, there is no question of granting anticipatory or regular bail.”  •

 Relying upon the above mentioned judgments Chattisgarh High Court in the case of Rakesh Khare v/s. State of Chattisgarh rejected the anticipatory bail. • 

The following are the judgments on the same line.

Jayesh G. Ramani v/s State of Gujarat reported at 2004 (3) GLH 270. • 

Dharmapriyadasji (Bapu Swamy) v/s Ajendraprasad Cri. Misc. Application (for cancellation of bail) No.2210 of 2014 Gujarat High Court – para Nos. 6, 7, 11 & 12. • 

 Arun Ghisalal Varma v/s Stateof Gujarat Cri.Misc. Application No.10757 of 2011. • Dilipsingh Bachubha Rana v/s State of Gujarat – Cri. Misc. Application No.18050 of 2012.  

3) Proclaimed offender is entitled for anticipatory bail  

In the case of Mahender Kumar vs. State of Himachal Pradesh, Cr.MP(M) No. 1682 of 2020, decided on 26th October,2020, para-11, reported in 2020 SCC OnLine HP 2119. Hon’ble Himachal Pradesh granted anticipatory bail to absconder by giving reasons and interpreting the judgment of Hon’ble Supreme Court in Lavesh case. I quote the few sentences of para no. 11 here. Para 11.” Section 82 of Cr.P.C. neither creates any riders nor imposes any restrictions in the filing of anticipatory bails by proclaimed offenders. Even in Lavesh’ case, while laying down the on anticipatory bails to absconders, Hon’ble SC structured the pronouncement by the words,” Normally”, ………..(fact of the case is discussed) The case maxim Domus sua curque est tutissimum refugium, aptly describes the plight of the accused which means every man’s house is his safest refuge. Thus, the circumstances cannot be termed as normal for the accused and he makes out a special case for bail. A balance approach would work as an incentive, a catalyst for proclaimed offenders to surrender to the Court of law, speeding up, the process and bringing the guilty to Justice and Justice to the guilty.” 

Chirag Bhatt 

Advocate 

9824025041