Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a suit for permanent injunction restraining the defendants from using the mark ‘Shopibay’ which was similar to the plaintiff’s mark ‘eBay/EBAY’, the Single Judge Bench of Navin Chawla, J. granted permanent injunction to ‘eBay’ and held that the adoption of mark by the defendant was dishonest and intended to deceive customers, hence, awarded Rs. 2 lakhs damages in favour of eBay.

Background

Plaintiff provides an online marketplace for sale of goods and services through their e-commerce platform with the domain name www.ebay.com and had a domain name specific for Indian users, that is, www.ebay.in which was created in 2005. The plaintiff’s ‘eBay Marks’ had been given protection under the provisions of the Trade Marks Act, 1999 (Act) by way of registrations and had also been accorded statutory and common law protection internationally.

In 2017, plaintiff came across a trade mark application filed by the defendant seeking registration of its mark ‘shopibay’, to which, plaintiff opposed. Upon investigation, it was found that defendants used the domain names www.shopibay.com and www.myshopibay.com which offered consumers links to various e-commerce platforms, including hosting the plaintiff’s main name www.ebay.com. The website of the defendants featured the plaintiff’s ‘eBay Marks’ and made a claim that the plaintiff was one of the partners of the defendants and was seen to offer the same services as that of the plaintiff. Moreover, defendants expanded their scope of business and apart from providing e-commerce services, the defendants also opened a brick-and-mortar store and began promoting their business on www.indiamart.com.

Analysis, Law, and Decision

In 2019, this Court granted an ex-parte ad-interim injunction in favour of the plaintiff and restrained the defendants from using the impugned trade mark ‘shopibay’ or any other mark deceptively similar to the plaintiff’s registered trade marks.

The Court opined that the mark adopted by the defendants, that is, ‘shopibay’ was deceptively similar to that of the plaintiff and was clearly intended to ride on the goodwill and reputation of the marks of the plaintiff. Further, it was an infringement of the marks of the plaintiff and amounts to passing off the goods and services of the defendants as that of the plaintiff. The defendants not only took unfair advantage of the plaintiff’s reputation and goodwill but also deceived consumers of their association with the plaintiff. Such acts of the defendants would also lead to dilution of the mark of the plaintiff.

The Court further opined that as far as the domain name of the defendants was concerned, the same was also deceptively similar to that of the plaintiff. It was likely to deceive a consumer of its association with the plaintiff. The Court relied on Anugya Gupta v. Ajay Kumar, 2022 SCC OnLine Del 1922, wherein this Court had held that “the right of a proprietor in a domain name was entitled to equal protection, applying the principles of the trade mark law. The use of the same or similar domain name might lead to diversion of users, which could result from such user mistakenly accessing one domain name instead of another. Therefore, a domain name might have all the characteristics of a trade mark and can find an action for passing off.”.

Further, in relation to the corporate names of the defendants, the Court opined that the ‘shopibay’ mark being phonetically similar to the mark of the plaintiff was also likely to deceive consumer of the association of these companies with the plaintiff. Thus, the Court held that plaintiff was entitled to damages of Rs. 2 lakhs in addition to the suit’s costs, and a permanent injunction was granted in favour of the plaintiff against the defendants.

[Ebay Inc. v. Mohd. Waseem T/As Shopibay, 2022 SCC OnLine Del 3879, decided on 17-11-2022]


Advocates who appeared in this case :

For the Plaintiff(s): Advocate Nancy Roy;

Advocate J. Sharanya.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a suit for permanent injunction restraining the defendants from infringing and/or passing off the Starbuck’s registered trade mark, the Single Judge Bench of Prathiba M. Singh, J. held that the adoption of mark by the defendant was dishonest and intended to deceive customers, hence, awarded Rs. 2 lakhs damages in favour of Starbucks.

Background

Plaintiff was a company that was organized and existed under the law of the State of Washington, the United States of America (USA). In 1985, the plaintiff was incorporated as ‘Starbucks Corporation’ and under its registered trade mark ‘Frappuccino’ and the variations thereof, offered its widely popular hand-crafted blended cold beverages throughout the world, which were also sold in bottled form in many countries in a variety of flavours.

Plaintiff developed specific flavours for various countries in which beverages under the ‘Frappuccino’ mark were available in the ‘Starbucks’ stores. Some flavours were developed for short-term promotions, while some were developed for long-term menu use, such as beverages bearing the mark ‘Frappuccino’ and in flavours including but not limited to ‘Banana Java Chip’, ‘mango-Azuki’, ‘Blackberry Green Tea’ in the Philippines, Switzerland, and Australia. Moreover, the plaintiff’s sales figure in relation to the various products sold under ‘Frappuccino’ marks were in billions of US Dollars and it had spent substantial amount on advertisement and promotion of its products and services, including in ‘Frappuccino’ marks.

In 2011, plaintiff signed a pact with ‘Tata Coffee Ltd.’ to open retail stores in India by way of equity joint venture and later ‘Tata Starbucks Private Limited’ was incorporated in 2011. Later, the plaintiff opened its first store in 2012 in Mumbai and obtained registration of the trade mark ‘Frappuccino’ in India in various classes.

Submissions on behalf of the Plaintiff

It was submitted that in 2018, it was brought to the notice of the plaintiff that defendants were operating a café/restaurant in Rajasthan, wherein a beverage under the name of ‘Brownie Chips Frappuccino’ was being sold without the plaintiff’s permission, authorization, or license. Moreover, defendants also referred to the beverage name ‘Frappuccino’ on the electric menu cards of their establishment, which were also being uploaded on third-party portals like, ‘Zomato’ and ‘EasyDiner’ for promotion and advertisement.

Further, it was submitted that the plaintiffs sent notices to defendants to stop the use of plaintiff’s registered mark ‘Frappuccino’ but even after repeated reminders no response was received. Therefore, it was submitted that the defendants were not only infringing the registered trade mark but were also guilty of passing off their product as those of the plaintiffs.

Counsel for the plaintiff placed reliance on Starbucks Corporation v. Jail Café, 2019 SCC OnLine Del 12301 (Jail Café case) and Starbucks Corporation v. Teaquila A Fashion Café, 2022 SCC OnLine Del 1381 (Tequila A Fashion Café case), wherein this Court provided protection to the plaintiff’s mark ‘Frappuccino’ and damages were also awarded to the plaintiffs.

Analysis, Law, and Decision

The Court noted that the plaintiff was a registered proprietor of the mark ‘Frappuccino’ as was evident from the plaint and documents filed with it. Further, the Court opined that the defendants had adopted an identical mark, with the prefix ‘Brownie Chip’ used by the defendants with the registered mark of the plaintiff ‘Frappuccino’ intending to deceive a customer and to ride upon the reputation of the mark. Moreover, the plaintiff itself used its mark ‘Frappuccino’ with a suffix depicting the flavours of its beverages, like ‘Java Chip Frappuccino’.

The Court held that the adoption of mark ‘Frappuccino’ by the defendants was dishonest and was intended to deceive a consumer. Moreover, it amounted to infringement of the plaintiff’s trade mark and would also result in passing off the goods of the defendants as that of the plaintiffs. The Court placed its reliance on Jail Café case and Teaquila A Fashion Café case to reach the said conclusion. The Court further opined that in Teaquila A Fashion Café case, this Court awarded damages of Rs. 2,00,000 in favour of the plaintiff and against the defendant, similarly damages deserved to be awarded in favour of the plaintiff and against the defendant in the present case as well. Further the Court also awarded legal fees of around Rs. 13 lakhs filed as ‘Advocate Fee Certificate’ in favour of plaintiff and against defendants.

[Starbucks Corporation v. Lol Café, 2022 SCC OnLine Del 3878, decided on 17-11-2022]


Advocates who appeared in this case:

For the Plaintiff(s): Advocate Priya Adlakha;

Advocate Bindra Rana;

Advocate Rima Majumdar;

Advocate Shipli Sinha.

Delhi High Court
Case BriefsHigh Courts

   

Delhi High Court: In a case where Club Factory was involved in the sale of various unauthorized/ counterfeited products, bearing the registered marks of Louis Vuitton, the Single Judge Bench of Prathiba M. Singh, J. awarded costs of Rs. 20 lakhs in favour of Louis Vuitton, though the bill placed on record showed a total claim of over Rs. 32 lakhs.

Background

The present matter had been listed for 3-11-2022, for ex-parte evidence in respect of the relief of damages. However, counsel for the plaintiff submitted that owing to certain sensitivity, the plaintiff only wished to press for costs and not for damages, even though, the suit was decreed in Louis Vuitton Malletier v. Futuretimes Technology India Private Limited, 2022 SCC OnLine Del 888, qua permanent injunction.

The decree that had been passed was as follows:

  1. a decree for permanent injunction was passed in favour of the plaintiff and restraining the defendants from importing, manufacturing, warehousing, selling and/or offering for sale, advertising, directly or indirectly dealing, in any manner, in any goods, including facemasks, etc. bearing the registered trade marks “LOUIS VUITTON”, “LV” logo, Toile monogram pattern, Damier pattern and/or LV Flower pattern or any similar trade mark amounting to an infringement of registered trade marks, on any platform whatsoever, including its website www.clubfactory.com, mobile apps, social media platforms, etc;

  2. doing any other act which amounted to passing off of the defendant’s products as those of the plaintiff;

  3. using trade marks, patterns, labels, logos or devices, which were identical or deceptively or confusingly similar to the plaintiff’s trade marks “LOUIS VUITTON”, the “LV” logo, the “Toile monogram” pattern, the Damier pattern and/or the LV Flower patterns (the said trade marks) or any similar trade marks so as to misrepresent the quality/ origin of their goods and from taking unfair advantage of the plaintiffs reputation and goodwill in the said trade marks or any similar trade mark thereby causing dilution and tarnishment of the plaintiff’s trade marks.

  4. Directed Department of Telecommunications and Ministry of Electronics and Information Technology to issue instructions to all ISPs to block the website www.clubfactory.com, so that the same was not accessible through VPN or other platforms.

Decision

The Court noted that the bill of costs placed on record showed that the total cost claimed was Rs. 32,29,416 but after considering the facts, the Court awarded Rs. 20,00,000 as costs to the plaintiffs.

[Louis Vuitton Malletier v. Futuretimes Technology India Private Limited, 2022 SCC OnLine Del 3862, decided on 3-11-2022]


Advocates who appeared in this case :

For the Plaintiff(s): Advocate Pravin Anand;

Advocate Dhruv Anand;

Advocate Nimrat Singh;

Advocate Udita Patro.

VISTARA
Case BriefsHigh Courts

   

Delhi High Court: In a case filed by Tata Sia Airlines (‘plaintiff') seeking decree of permanent injunction against company selling keychains and baggage tags bearing the ‘VISTARA Marks' in the aubergine and gold colour-combination, on a Chinese e-commerce platform, namely AliExpress, by the seller (‘defendant'), Navin Chawla J., raised security concerns of national and international nature at airports due to the infringing material and thus, granted permanent injunction against the infringing defaulter and entitled it to pay Rs. 20 Lakh as damages.

Since their launch in the year 2014, the plaintiff has adopted and extensively used the colour combination of violet (aubergine) and gold as a part of its trade dress, inter alia, as part of its logo; on the uniform of its airline staff; its advertisement panels and its sign-boards/message panels at airports. The plaintiff also issues baggage tags to its crew members which bear the plaintiff’s ‘VISTARA Marks'.

In July 2020, the plaintiff received information about the sale of keychains and baggage tags bearing the ‘VISTARA Marks' which were being sold on a Chinese e-commerce platform, namely AliExpress, by the seller, despite the e-commerce platform being based mostly in China, the website contained several listings by the defendant of infringing baggage tags and keychains bearing the ‘VISTARA Marks' which were eligible for shipping to India.

Thus, the present suit was filed seeking inter alia a decree of permanent injunction restraining the defendant, their associated companies, subsidiaries, directors, wholesalers, distributors, partners or proprietors, its officers, servant and agents from advertising, directly or indirectly offering any goods or services, using or registering corporate names, domain names, or listings on social media platforms as also e-commerce websites which bear the plaintiff’s registered trademarks ‘VISTARA' and/or along with relief against passing off, dilution, tarnishment and unfair competition

VISTARA

Placing reliance on TATA SIA Airlines Limited v. Pilot18 Aviation Book Store, 2019 SCC OnLine Del 9535, the Court noted that the use of the “VISTARA Marks” not only amounts to infringement and passing off of the mark of the plaintiff but would cause dilution of the mark of the plaintiff, further causing deception and confusion in the mind of the unwary consumer.

The Court remarked “Airports are an incredibly critical junction of not only travel but also of trade and commerce; any lapse in security, especially by permitting the sale of vagrantly-infringing goods, would be turning a blind eye to obvious wrongdoings of the defendant.”

Considering the fact that the plaintiff is the registered proprietor of the ‘VISTARA Marks' and none has entered appearance for the defendant, this Court is of the opinion that the defendant has no justification for the adoption of an identical trade mark for sale of their goods.

Reliance was placed on Tata Sons Ltd. v. Manoj Dodia, 2011 SCC OnLine Del 1520 wherein it was held that when a person uses another person’s “well-known trade mark”, he tries to take advantage of the goodwill that such a “well-known trade mark” enjoys. Such an act constitutes unfair competition. It also causes dilution of a “well-known trade mark” as it loses its ability to be unique and distinctively identified and distinguish as one source and consequent change in perception which reduces the market value or selling power of the product bearing the well-known trade mark.

The Court thus granted permanent injunction against the entity selling infringing keychains and baggage tags bearing the ‘VISTARA Marks' and in view of the object and mandate of the Commercial Courts Act, 2015; the Delhi High Court (Original Side) Rules, 2018; and the Delhi High Court Intellectual Property Division Rules, 2022, the plaintiff was held entitled to damages and costs quantified at Rs 20 Lakh (Rupees Twenty Lakh only).

[Tata Sia Airlines Limited v. Shenzhen Coloursplendour Gift Co. Ltd., CS (Comm) 352 of 2020, decided on 31-08-2022]


Advocates who appeared in this case :

Mr. Mukul Kochhar & Mr. Aditya Gupta, Advocates, for the Plaintiff;

None for respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: In a case where permanent injunction was sought against use of Royal Champs, a Gwalior Distilleries Private Limited product (‘defendants’), selling whiskeys under a deceptively similar name and label design and using the goodwill of Royal Stag, a Seagram India Private Limited product (plaintiffs), Navin Chawla, J. decided the issue in favour of Royal Stag and direct defendants to pay damages of Rs 20 lakhs.

Royal Stag is a well-known whiskey sold under the label of SEAGRAM since 1995 by the company Seagram India Private Limited. In December 2001, Pernod Ricard SA (parent company of plaintiffs) acquired a part of Seagram group but continued to trade alcoholic beverages under SEAGRAM marks.

The trademark ROYAL STAG is a coined trademark, having no significance or meaning in common parlance, and no correlation to the character or quality of whiskey marketed there under. It was also stated by the plaintiffs that it constitutes an ‘original artistic work’ within the meaning of Section 2(c) of Copyright Act, 1957 (‘Copyright Act’).

The plaintiffs filed the present suit praying inter-alia for a decree of permanent injunction restraining the defendant, its directors, assigns in business, distributors, licensees and dealers from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in whiskey or any other alcoholic beverages under the impugned trade mark/logo/label SEAGRAM’S and/or ROYAL CHAMP or any other trade mark/logo/label as may be deceptively similar to the trademarks of the plaintiffs that is SEAGRAM’S or SEAGRAM’S logo or ROYAL STAG or its label amounting to infringement of trade marks registrations of the plaintiffs, passing off, unfair competition, as also infringement of copyright of the plaintiffs. The plaintiffs also prayed for rendition of accounts of profits earned by the defendant or in the alternative, a decree of Rs. 20 Lakh (Rupees Twenty Lakh only) and the costs of the suit.

Deceptive Similarity

The ROYAL STAG label comprises of a cream background with a prominent device of a thick swirling ribbon downwardly in burgundy and golden colours and the trademark ROYAL STAG represented upon the burgundy surface of the ribbon in bold cream colour letterings; and the SEAGRAM Marks depicted at the top of the label as also the bottom.

Placing reliance on Mondelez India Foods Pvt Ltd v. Neeraj Food Products, (2022) SCC OnLine Del 2199, the Court noted that in the present case, the goods of the plaintiffs and defendant are identical, that is whiskey. The mark of the defendant is deceptively similar to that of the plaintiffs. The test to be applied for judging the claim of infringement and passing off is of an unwary consumer with average intelligence and imperfect recollection.

The Court applied the above test to note that mere use of the word ‘CHAMP’ instead of ‘STAG’ is not sufficient to distinguish the two marks, especially when combined with the overall get up of the label. The goods are sold over the counter and an unwary consumer is likely to confuse one for the other.

The Court observed that the plaintiffs have also been able to establish a long, continuous use of its trademarks and held that the mark of the defendant is deceptively similar to that of the plaintiffs and clearly intended to deceive the unwary consumer. The defendant is, therefore, guilty of passing off its goods like that of the plaintiffs.

The Court further held that the label of the defendant is a colourable and slavish imitation of the plaintiffs’ ROYAL STAG label and also amounts to copyright infringement under Section 51 read with Section 55 of the Copyright Act.

The Court remarked “the adoption by the defendant of the trademarks ROYAL CHAMP and the deceptively-similar logo to the SEAGRAM logo of the plaintiffs was clearly intended to deceive the unwary consumer and to ride on the reputation and goodwill of the plaintiffs.”

Placing reliance on Uflex Ltd. v. State of TN (2022) 1 SCC 165 and Intel Corporation v. Dinakaran Nair 2006 SCC OnLine Del 459, as also, in terms of the Commercial Courts Act, 2015 and the Delhi High Court (Original Side) Rules, 2018 read with Delhi High Court Intellectual Property Division Rules, 2022, the Court directs the defendants to pay damages amounting to Rs. 20 Lakh.

[Austin Nichols & Co Inc v. Gwalior Distilleries Private Limited, 2022 SCC OnLine Del 2498, decided on 18-08-2022]


Advocates who appeared in this case :

Mamta Jha, Abhijeet Rastogi & Vishesh Kumar, Advocates, for the Plaintiffs;


*Arunima Bose, Editorial Assistant has put this report together.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: N. Nagaresh, J., directed the Geologist of Department of mining & geology, Manjeri to release wrongfully seized vehicles of the petitioners which were seized alleging illegal trafficking of granite stones.

The petitioners, a father, and a son, are owners of the vehicles which were seized by the Station House Officer, alleging that the vehicles were illegally transporting granite stones from a granite crusher without having valid passes.

On the contrary, the petitioners contended that they were holding valid Electronic Mineral Transit Passes issued by the Geologist on the date of seizure which made the continued seizure of the vehicles illegal and unwarranted.

The petitioners alleged that though they had submitted representations before the Geologist, Department of mining & geology, Manjeri, no steps had been taken to release the vehicles, and the continued detention would damage the vehicles and put the petitioners in untold difficulties.

Contesting the petition, the State contended that when the vehicles were seized, the drivers did not show any Mineral Transit Passes and it was in such circumstances that the vehicles were seized.

The Court noted that the vehicles were seized on 28-07-2022 at 11.00 a.m while the Mineral Transit Passes issued by the Geologist indicated that the Passes were generated at 10.19 a.m and 10.23 a.m respectively on 28-07-2022. Therefore, the Court held that the vehicles had valid Mineral Transit Passes at the time of seizure and the detention of the vehicles was unwarranted.

Accordingly, the writ petition is disposed of directing the Geologist was directed to release the vehicles of the petitioners forthwith, after obtaining an undertaking from the petitioner that the vehicles will not be alienated pending the proceedings and will be produced as and when required.

[Stephen Rodrigues v. Geologist, 2022 SCC OnLine Ker 4001, decided on 08-08-2022]


Advocates who appeared in this case :

K. Aboobacker Sidheeque, Advocate, for the Petitioner;

G.P. Syamanthak B S, Advocate, for the Respondents.


*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsInternational Courts

   

European Court of Justice (ECJ): In a far-reaching decision, the Bench of C. Lycourgos (Rapporteur), President of the Chamber, S. Rodin, J.-C. Bonichot, L.S. Rossi and O. Spineanu-Matei, JJ., held that sending of a warning letter for trademark infringement, per se, will not break the limitation period and end acquiescence for use of the similar later trademark.

The German Federal Court of Justice had requested the ECJ for a preliminary ruling on the interpretation of Article 9 of Directive 2008/95/EC of the European Parliament of 22-10-2008 to approximate the laws of the Member States relating to trademarks, and Articles 54 and 111 of Council Regulation (EC) No 207/2009 of 26-02-2009 on the Community trademark.

The European Union law in question provides that where, in a Member State, the proprietor of an earlier trademark has acquiesced, for a period of five successive years, use of a similar later trademark while being aware of such use, he shall no longer be entitled either to apply for a declaration that the later trademark is invalid or to oppose the use of the later trademark in respect of the goods or services for which the later trademark has been used; unless registration of the later trademark was applied for in bad faith.

Factual Backdrop

The request had been made in proceedings between HEITEC AG (the applicant) and HEITECH Promotion GmbH and RW concerning the use of the trade name HEITECH Promotion GmbH and trademarks containing the word element ‘heitech' by the latter.

The applicant is the proprietor of the EU word mark HEITEC, with seniority claimed as from 13-07-1991, and registered on 04-07-2005. It was entered in the commercial register in 1984 under the name Heitec Industrieplanung GmbH which was later changed to Heitec GmbH. Since the year 2000, it has been operating under the name of Heitec AG.

Heitech, of which RW is the managing director, was entered in the commercial register on 16-04-2003 as the proprietor of a German figurative mark containing the word element ‘heitech promotion' and of an EU figurative mark containing the word element ‘heitech', applied for on 06-02-2008 and registered on 20-11- 2008, which it has used since 06-05-2009 at the latest.

Chronology of Events

The applicant became aware of Heitech's application for registration of the EU figurative mark containing the word element ‘heitech' on 07-07-2008 and by a letter dated 22-04-2009, it sent Heitech a warning letter regarding the latter's use of its tradename and the EU trademark containing the word element ‘heitech'. In its reply, Heitech proposed to enter into a coexistence agreement.

On 31-12-2012, the applicant approached the Nuremberg Regional Court to initiate proceedings against Heitech and RW. However, the proceedings could not begin since the applicant had failed to make the advance payment and lodge the originals of the application initiating proceedings. It was only on 30-12-2013 that the Regional Court received written submissions dated 12-12-2013 from the applicant, together with a cheque for court fees and a new application initiating proceedings bearing the date 04-10-2013. The preliminary proceedings were finally opened on 16-05-2014 and a notice was served to the defendants in the main proceeding on 23-05-2014.

Meanwhile, in a letter dated 23-09-2013, the applicant informed Heitech that it refused to conclude a coexistence agreement and proposed to conclude a licence agreement while stating that it had initiated legal proceedings.

Finally, the applicant claimed the infringement of its trademark rights and contended that Heitech should be ordered to refrain from identifying its company by the trade name ‘HEITECH Promotion GmbH', to refrain from affixing the word elements ‘heitech promotion' and ‘heitech' on goods and from marketing or advertising goods or services under those signs, to refrain from using or transferring, for commercial purposes, the website heitech-promotion.de and to agree to the removal of its company name from the commercial register.

The applicant also brought claims for information, for a finding of an obligation to pay compensation, for the destruction of goods and for the payment of the costs of sending the warning letter.

Findings of the Nuremberg Regional Courts

The Regional Court ordered Heitech to pay the applicant EUR 1 353.80, plus interest, for the costs of sending the warning letter and rejected the other claims. Aggrieved, the applicant appealed before the Nuremberg Higher Regional Court, which held that the applicant's action was unfounded as it was time-barred.

The Higher Regional Court noted that Heitech had used its later signs for an uninterrupted period of at least five years and that the applicant had acquiesced in such use, since, although it was aware of that use, it had not taken sufficient measures to stop that use.

The Higher Court held that the court action had not interrupted the period of limitation, since it had been served on Heitech and RW only after five years had elapsed since the warning letter which preceded that action.

The applicant challenged the afore-mentioned findings before the Federal Court of Justice, Germany (referring court).

Questions Referred

That referring court noted that the outcome of the appeal depends on the interpretation of European Union (EU) law on whether the applicant is time-barred from bringing its claim for an injunction and its ancillary claims. Therefore, the referring court referred the following questions to the Court of Justice for a preliminary ruling:

  1. Can acquiescence be excluded not only by means of an administrative or court action but also through conduct not involving a court or administrative authority?

  2. Does the sending of a warning letter, in which the proprietor of the earlier sign, before initiating legal proceedings, requires the proprietor of the later sign to agree to refrain from using the sign, and to enter into an obligation to pay a contractual penalty in the event of an infringement, constitute conduct precluding acquiescence?

  3. When seeking judicial redress, is the bringing of the action before the court or the receipt of the action by the defendant decisive for calculating the five-year acquiescence period? Is it significant in this regard that receipt of the action by the defendant is delayed beyond the expiry of the five-year period through the fault of the proprietor of the earlier trademark?

  4. Does the limitation of rights encompass consequential claims under trademark law; i.e., claims for compensation, provision of information or destruction, as well as prohibitory injunctions?

Analysis and Findings

Is a warning letter sufficient to break the limitation period and end acquiescence?

Relying on Levi Strauss, C 145/05, the Court noted that by setting a period of limitation in consequence of acquiescence of five consecutive years with knowledge of the use of the later trademark, the EU legislature sought to ensure that the protection conferred by an earlier trademark on its proprietor remains limited to cases where the proprietor shows itself to be sufficiently vigilant by opposing the use of signs by other operators likely to infringe its mark.

Opining that the rule on limitation in consequence of acquiescence is intended to safeguard legal certainty, the Court stated,

“Where the proprietor of an earlier mark or other earlier right, within the meaning of Directive 2008/95 or Regulation No 207/2009, has knowingly ‘acquiesced' in the use of a later mark applied for in good faith for a continuous period of five years, the proprietor of the latter mark must be certain in law that such use can no longer be challenged by the proprietor of that earlier mark or other earlier right.”

As regards the conditions under which the proprietor of the earlier mark or other earlier right may be regarded as having carried out an act that interrupts the period of limitation, the Court observed that the proprietor must bring an administrative or court action before the expiry of the limitation period.

The Court observed that where the proprietor of the earlier mark has issued a warning letter with which the proprietor of the latter mark did not comply, the warning letter will only interrupt the period of limitation in consequence of acquiescence when, following the unsatisfactory response to the warning letter, the proprietor of the earlier mark invokes an administrative or court action to enforce its rights. In contrast, in such a scenario, the failure to bring an administrative or court action will mean that the proprietor of the earlier mark has failed to take the measures available to it to put an end to the alleged infringement of its rights. The Court opined,

“Any interpretation to the effect that sending a warning letter is sufficient to interrupt the period of limitation would allow the proprietor of the earlier mark or other earlier right to circumvent the regime for limitation in consequence of acquiescence by repeatedly sending a warning letter approximately every five years. Such a situation would undermine the objectives of the regime for limitation in consequence of acquiescence and would deprive that regime of its effectiveness.”

Date of action v/s Date of receipt by Defendant: Which one is decisive for calculating the five-year acquiescence period?

Referring to the rule as followed in civil matters, the Court observed that the date on which the application initiating proceedings was lodged is the date on which a court action must be deemed to have been brought.

The Court, though agreed with the opinion of the Advocate General that the lodging of the application initiating proceedings reflects the genuine and unambiguous wish of the applicant to assert its rights, which is sufficient to end acquiescence and to interrupt the period of limitation, it noted that the conduct of that party may nevertheless, raise doubts as to that wish and the seriousness of the action brought before the court.

Noting that the Regional Court with which the applicant had lodged an application initiating proceedings, repeatedly contacted it in order to draw its attention to irregularities that prevented service of the notice on the defendants, the Court opined that the applicant could not claim to have put an end to the acquiescence of the use of the later mark by lodging the application initiating proceedings. The Court noted,

“Where the application initiating proceedings, although filed before the date of expiry of the period of limitation, did not, owing to a lack of diligence on the part of the applicant, satisfy the requirements of the applicable national law for service and was rectified only after that date the action must be regarded as time-barred.”

Consequently, the Court held that it is for the referring court to ascertain whether the date on which the application to initiate proceedings was rectified to enable the court to commence the proceedings and to serve that document on the defendants was within the period of limitation and whether the conduct of the applicant in initiating proceedings could be characterized as lack of diligence.

Whether a proprietor of the earlier mark being time-barred from seeking a declaration of invalidity of a later mark, is also time-barred from bringing ancillary or related claims?

Affirming the opinion of the Advocate General that it would be contrary to the objectives of the regime for limitation in consequence of acquiescence to allow the proprietor of the earlier mark to bring an action against the proprietor of that later mark for damages and injunctions after the end of the limitation period, the Court held,

“If such action or such claims were to succeed after the expiry of the period of limitation, it would amount to leaving intact, beyond that date, the possibility of a finding that the use of the later mark infringes the earlier mark and to attributing a non-contractual liability to the proprietor of the later mark.”

The Court added,

“Such an interpretation of the regime of limitation in consequence of acquiescence would undermine the objective pursued by that regime, which is to give the proprietor of the later trademark the certainty, at the end of that period, that the use of that mark can no longer be challenged, by whatever legal means, by the person that has knowingly acquiesced in its use for an uninterrupted period of five years.”

Conclusion

In the backdrop of above, the Court ruled:

  • A warning letter, by which the proprietor of an earlier mark or other earlier right opposes the use of a later mark without taking the necessary steps to obtain a legally binding solution, does not stop acquiescence and, consequently, does not interrupt the period of limitation.

  • The application of action will be time-barred where the application initiating proceedings, although filed before the date of expiry of the period of limitation, did not, owing to a lack of diligence on the part of the applicant, satisfy the requirements of the applicable national law for service and was rectified only after that date for reasons attributable to the applicant.

  • Where the proprietor of an earlier mark is time-barred from seeking a declaration of invalidity of a later mark and from opposing the use of that later mark, that proprietor is also time-barred from bringing ancillary or related claims, such as claims for damages, the provision of information or the destruction of goods.

[HEITEC AG v. HEITECH Promotion GmbH, C466/20, decided on 19-05-2022]

*Kamini Sharma, Editorial Assistant has reported this brief

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States (SCOTUS): In a 6-3 ruling, Court expressed that, Emotional distress damages are not recoverable in a private action to enforce either the Rehabilitation Act of 1973 or the Affordable Care Act, Roberts C.J., delivered the opinion of the Court, in which Thomas, Alito, Gorsuch, Kavanaugh and Barret, JJ., joined, whereas. Kavanaugh, J., filed a concurring opinion, in which Gorsuch, J., joined and Breyer, J., filed a dissenting opinion, in which Sotomayor and Kagan, JJ., joined.

Factual Background

Jane Cummings, who was deaf and legally blind, sought physical therapy services from Premier Rehab Keller and asked Premier Rehab to provide an American Sign Language interpreter for her sessions. Premier Rehab declined to do so, telling Cummings that the therapist could communicate with her through other means.

Later a lawsuit was filed seeking damages and other relief against Premier Rehab, alleging that its failure to provide an ASL interpreter constituted discrimination on the basis of disability in violation of the Rehabilitation Act of 1973 and the Affordable Care Act.

Premier Rehab was subject to the above statutes, which apply to entities that receive federal financial assistance, because it received reimbursement through Medicare and Medicaid for the provision of some of its services.

Further, the District Court determined that the only compensable injuries allegedly caused by Premier Rehab were emotional in nature. It held that damages for emotional harm are not recoverable in private actions brought to enforce either statute. The District Court thus dismissed the complaint, and the Fifth Circuit affirmed.

Whether emotional distress damages may be recovered under the Spending Clause statute?

Court noted that the statutes are silent with regard to the available remedies.

It was stated that there is no basis in contract law to maintain that emotional distress damages were “traditionally available in suits for breach of contract”.

Hence, emotional distress damages are not traditionally available in suits for breach of contract, for emotional distress, therefore, it was held that emotional distress damages are not recoverable under the Spending Clause anti-discrimination statutes.

None of the laws that protect against disability discrimination allows victims to recover for their emotional distress.

Concurring

Justice Kavanaugh and Justice Gorsuch said that the contract law analogy was imperfect and would reorient the inquiry to focus on a background interpretive principle rooted in the Constitution’s separation of powers.

Dissenting

Justice Breyer with whom Justice Sotomayor and Justice Kagan joined, with dissenting opinion that, compensatory damages under Civil Rights Act of 1964, Title VI, 42 U. S. C. §2000d; Education Amendments Act of 1972, Title IX, 20 U. S. C. §1681; Rehabilitation Act of 1973, §504, 29 U. S. C. §794; Patient Protection and Affordable Care Act (ACA), §1557, 42 U. S. C. §18116, cannot include compensation for emotional suffering.

Further, it was expressed that the Spending Clause statutes prohibit intentional invidious discrimination, and that kind of discrimination causes emotional disturbance. Hence, applying the contract analogy, victims of intentional violations of the anti-discrimination statutes can recover compensatory damages for emotional suffering.

Additionally, it was observed that the damages for emotional suffering have long been available as remedies for suits in breach of contract at least where the breach was particularly likely to cause suffering of that kind.

“Contract law treatises make clear that expected losses from the breach of a contract entered for nonpecuniary purposes might reasonably include nonpecuniary harms. So contract law traditionally does award damages for emotional distress “where other than pecuniary benefits [were] contracted for” or where the breach “was particularly likely to result in serious emotional disturbance.”

 [Cummings v. Premier Rehab Keller, 2022 SCC OnLine US SC 4, decided on 28-4-2022]

Case BriefsSupreme Court

Supreme Court: In a case relating to double insurance, the 3-Judge Bench comprising of Uday Umesh Lalit, S. Ravindra Bhat* and Pamidighantam Sri Narasimha, JJ., reversed the impugned order of National Consumer Disputes Redressal Commission (NCDRC) which allowed the insurance claim of Levi Strauss (India) Pvt. Ltd. which was repudiated by the insurer.  The Bench opined,

“Levi could not claim more than what it did, and not in any case, more than what it received from Allianz.”

The United India Insurance Co. Ltd. (insurer) had issued a Standard Fire & Special Perils Policy (SFSP Policy) to Levi, covering Levi’s stocks while in storage for the sum of Rs. 30 crores. Meanwhile, the parent company of Levi (Levi Strauss & Co.) had obtained a global policy from Allianz Global Corporate & Specialty (Allianz) covering stocks of all its subsidiaries, including Levi. The coverage through this stock throughout policy (STP Policy) was for $10 million in any one vessel or conveyance, and $50 million in any one location. The parent company also got another “all risks” policy (AR Policy) issued by Allianz covering the stocks of its subsidiaries throughout the world being commercial lines policy. The limit of liability of the AR Policy was up to $ 100 million.

Repudiation of Claim

During subsistence of all these policies, a fire broke out in one of the warehouses containing Levi’s stocks. Levi claimed Rs. 12.20 crores from the insurer. However, the insurer repudiated the claim stating that it was not liable to indemnify the insured in view of the policies issued by Allianz, since Condition 4 in the SFSP Policy clearly stated that the fire policy issued by it excluded liability in respect of property covered by marine policy.

The insurer’s defence was that the SFSP Policy did not cover any loss or damage to the property which at the time of the happening of such loss or damage was insured, by any marine policy or policies.

Findings of NCDRC

On a consideration of Clause 47 of the STP Policy, the NCDRC held that to the extent of the insured risk being covered by the domestic policy, coverage by the STP Policy stood excluded. Therefore, the NCDRC concluded that the loss of profit which Levi would have earned on sale of the damaged/destroyed cost was payable to it by Allianz, whereas the loss suffered by Levi to the extent of the cost of those goods would be reimbursable under the domestic policy issued by the insurer. After noting that Levi had received $4.54 million (Rs. 19.52 crores); the claim was allowed to the extent of Rs. 1.78 crores.

Was the STP Policy a Marine Policy?

Section 4 of the Marine Insurance Act, 1963 clarifies that a contract of marine insurance may, by its express terms, or by usage of trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage. Similarly, in Peacock Plywood Pvt. Ltd. v. Oriental Insurance Co. Ltd, 2006 Supp (10) SCR 140, and United India Insurance Co. Ltd. v Great Eastern Shipping Co. Ltd., 2007 (9) SCR 350, it was held that warehouse risks, combined with voyage and other marine risks, are part of marine insurance policies in India.

Further, in the instant case, the first two recitals of the STP Policy, as well as the warehouse-to-warehouse transit (Clause 6) and other stipulations clearly stated that the policy covers both marine and other risks. In fact, the STP describes itself as “Open Marine Insurance Contract”.

Hence, the Bench held that the STP Policy was a marine policy which comprehensively covered voyage, transit, transportation and warehouse perils. Even otherwise, the insurance cover clearly and unequivocally included marine perils, making it a marine cover.

Factual Analysis

Condition 4 of the SFSP Policy, which constituted a contract between the parties, precisely contemplated a situation whereby in the event of occurrence of an insurance risk, if Levi (or someone on its behalf, like in the present case the parent company) was entitled to claim under a marine policy, the insurer was not to be held liable.

In Export Credit Guarantee Corporation of India Ltd. v. Garg Sons International, (2014) 1 SCC 686, it had been held that, “the insured cannot claim anything more than what is covered by the insurance policy. The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely. The clauses of an insurance policy have to be read as they are.”

Hence, the Bench held that on a plain and reasonable construction of Condition 4 of the SFSP policy, once it is established that Levi – or its parent company – was covered for the risk under a marine policy, (the STP Policy) and was entitled to claim under it, the appellant insurer’s liability was excluded. Therefore, Condition 4 operated to exclude the insurer’s liability.

Double Insurance – Overlapping policies

Noticeably, as against the claim of Rs. 12.2 crores made upon the insurer, Levi ultimately received equivalent of over Rs. 19 crores from Allianz and yet kept seeking damages form the other insurer, therefore, the Bench observed,

“What is in issue in this present case has been characterized as “double insurance”, i.e., where an entity seeks to cover risks for the same or similar incidents through two different – overlapping policies.”

The Bench opined that a contract of insurance is and always continues to be one for indemnity of the defined loss, no more no less and in the case of specific risks, such as those arising from loss due to fire, etc., the insured cannot profit and take advantage by double insurance. Reliance, in this regard was placed on the Court on the opinion of Brett LJ in Castettion v Preston, (1833) 11 QBD 380, wherein he said that:

“The contract of insurance … is a contract of indemnity, …, and this contract means that the assured, in the case of a loss …, shall be fully indemnified, but shall never be more than fully indemnified.”

Conclusion

In the light of above, the Bench held that Levi could not claim more than what it did, and not in any case, more than what it received from Allianz. Its endeavour to distinguish between the STP Policy and the SFSP Policy, i.e., that the former covered loss of profits, and the latter – the value of manufactured goods; is not borne out on an interpretation of the terms of the two policies.

Since, Levi had already received substantial amounts towards the sale price of its damaged goods, over and above the manufacturing costs, the Bench allowed the appeal and set aside the impugned order.

[United India Insurance Co. Ltd. v. Levis Strauss (India) (P) Ltd., 2022 SCC OnLine SC 537, decided on 02-05-2022]


*Judgment by: Justice S. Ravindra Bhat


Appearance by:

For the Appellant: A.K. De, Advocate

For the Respondent: Joy Basu, Senior Advocate


Kamini Sharma, Editorial Assistant has put this report together

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Case BriefsHigh Courts

Madras High Court: G.R. Swaminathan, J., held that to succeed in a suit for malicious prosecution, the acquittal of the plaintiff alone is not sufficient. Rather, the plaintiff is obliged to prove (i) that the prosecution was without any reasonable and probable cause, and (ii) that it was instituted with a malicious intention, and  (iii) that he suffered damage.

The instant second appeal was filed by the defendants in the suit filed by the plaintiff for malicious prosecution. The plaintiff had questioned the manner in which the local mosque of his area was being administered. The President of the Jamath which managed the mosque was the brother-in-law of Defendant 1, who implicated the plaintiff and his son in a criminal case under Sections 452 and 506(2) IPC. The plaintiff was arrested and detained in custody for more than 24 hours. He was also suspended from service. Subsequently, he was acquitted by the Judicial Magistrate. Following his acquittal, the plaintiff filed the instant suit.

The plaintiff claimed damages of Rs 1.5 lakhs from the defendants. The trial court had dismissed the suit of the plaintiff, but he succeeded before the first Appellate Court which awarded him damages amounting to Rs 1 lakh. Defendants 1 to 6 (all appellants in the instant appeal) were found liable by the first Appellate Court.

While giving relief to Defendants 2 to 6, and dismissing the appeal qua Defendant 1, but at the same time modifying the amount of damages awarded to the plaintiff, the High Court discussed and decided the following points:

1. Suit for malicious prosecution lies against whom?

A suit for malicious prosecution will lie only against that person at whose instigation the proceedings commenced.

The High Court said that the question is who was the prosecutor. In the instant case, it was only Defendant 1 who gave the complaint against the plaintiff and his son. The other defendants no doubt supported the prosecution but they merely figured as witnesses. Defendants 2 to 6 could not be said to have prosecuted the plaintiff. If according to the plaintiff, they had committed perjury, the course of action to be taken against them will have to be different.

The Court held that the plaintiff did not have any cause of action against Defendants 2 to 6. The appeal qua them was allowed.

However, according to the Court, Defendant 1 could not take the same plea. Even though criminal case was based on police report, it was anchored on the complaint given by Defendant 1. Having been the de facto complainant and having played a prominent part in the prosecution, Defendant 1 could not be heard to contend that the suit is not maintainable against him. The Court placed reliance on the Privy Council decision in Balbhaddar Singh v. Badri Sah, 1926 SCC OnLine PC 14.

2. Duty of Civil Court in a suit for malicious prosecution

The case of the prosecution against the plaintiff in the criminal case under Sections 452 and 506(2) IPC ended in acquittal. But, according to the High Court, the Civil Court must undertake an independent enquiry in such cases. It cannot merely borrow the grounds of the acquittal and grant decree in favour of the plaintiff. The burden of proof lies on the plaintiff to show that he was maliciously prosecuted.

3. Shifting of burden of proof

To discharge the burden cast on him, the plaintiff examined himself to depose that the complaint against him was false. According to him, the first defendant was nurturing animosity against the plaintiff for more than one reason.

The High Court said that there is no doubt that the burden of proof lay only on the plaintiff. This burden can never shift. However, the plaintiff cannot be called upon to prove the negative. As regards the non-existence of reasonable and probable cause, the onus will shift to the defendant after the plaintiff asserts in the witness box that the complaint against him was false and after he adduces evidence demonstrating the existence of malice on the part of the defendant.

While on this point, the High Court summarised the principles laid down in Bharat Commerce & Industries Ltd. v. Surendra Nath Shukla, 1965 SCC OnLine Cal 79; and Satdeo Prasad v. Ram Narayan, 1968 SCC OnLine Pat 26.

4. Nature of proof

The High Court observed that a plaintiff in a suit for malicious prosecution need not demonstrate that he was innocent of the charge upon which he was tried. The Privy Council in Balbhaddar Singh v. Badri Sah, 1926 SCC OnLine PC 14 has categorically held so. The plaintiff need not undergo a second agnipariksha. On the other hand, it is the defendant who must discharge the onus once it is shifted to him.

5. Merits of the case

The High Court held that in the instant case, Defendant 1 had miserably failed to discharge the onus cast on him and the plaintiff had proved all the ingredients of malicious prosecution.

The allegation of Defendant 1 was that he had given an earlier complaint against the plaintiff and to force him to withdraw the same, the plaintiff and his son entered his shop on 1-12-2000 at 9 pm. But the earlier complaint was not marked. Since the occurrence spot is a shop, it would have definitely attracted notice and a complaint would have been lodged before the local police immediately thereafter. But, Defendant 1 approached the District Superintendent of Police only on the next day and the written complaint given by Defendant 1 was sent through post to the Police Station concerned and the FIR itself was registered only on 6-12-2000. Also, in support of the criminal charge, except the testimony of Defendant 1 himself, there was no corroboration forthcoming.

In Court’s opinion, the existence of malice was amply established by the plaintiff. On 2-11-2000 the plaintiff has sent a notice to the President of the mosque, who was none other than the brother-in-law of Defendant 1. It was also admitted that the plaintiff asked for accounts and the relationship between the mosque management and the plaintiff was under strain. In this background, the criminal case was registered and the plaintiff was arrested.

A reading of the evidence adduced on either side showed that there were two issues, one concerning the mosque administration and the other concerning the matrimonial dispute of the plaintiff’s son. It was obvious that the mosque management wanted to teach the plaintiff a hard lesson. There was no cause at all for giving the complaint, let alone reasonable and probable cause. The twin reasons mentioned above culminated into a false complaint.

6. Damages

The plaintiff was arrested and was in detention for more than twenty-four hours. He had to seek bail and furnish sureties. He had to undergo the agony of trial. He was suspended from service. The plaintiff obviously incurred expenditure for engaging counsel and attending the court hearings. As a result of the case, his family was also excommunicated. Thus, the plaintiff established that he suffered damage and injury. His reputation was tarnished and he also suffered loss of liberty. He had clearly made out a case for award of damages.

Considering the facts and circumstances, the High Court quantified the compensation payable to the plaintiff at Rs 50,000. Defendant 1 was directed to pay damages as compensation to the plaintiff with interest at the rate of 6% per annum from the date of plaint till the date of payment. [M. Abubaker v. Abdul Kareem, 2021 SCC OnLine Mad 1934, decided on 21-4-2021 ]

Case BriefsDistrict Court

State Consumer Dispute Redressal Commission, Odisha (SCDRC): Dr D.P. Choudhury (President) modified the compensation amount awarded to a Law Student in light of being subjected to ‘Deficiency of Service’ and ‘Unfair Trade by ‘Amazon’.

The instant appeal was filed under Section 15 of the erstwhile Consumer Protection Act, 1986.

Factual Matrix

While the appellant was in his first year of law school, the OP had floated an offer for sale of a Laptop without Laptop Bag for Rs 190 against the price of Rs 23,499.

OP had confirmed for placing of the order and two hours after receiving the confirmation, the appellant received a phone call from the OP’s Customer Care Service Department stating that the subject order stood cancelled due to the price recession issue.

Since the complainant was in need of a laptop to prepare his project, he raised an objection for such cancellation.

On not receiving any response from the OP, complainant issued a legal notice.

Deficiency in Service

Appellant had to purchase another laptop but suffered from mental agony for such cancellation, hence filed a complaint alleging the deficiency in service and unfair trade practice.

Complainant claimed compensation of Rs 50,000 and Rs. 10,000 towards litigation cost.

District Forum had allowed the complaint partly by directing the OP to pay compensation of Rs 10,000 for mental agony and to pay Rs 2,000 towards the cost of litigation.

Hence, the aforesaid impugned order was challenged by the complainant/appellant stating that the District Forum committed error in law by not deciding to direct to pay Rs 50,000 as compensation.

Analysis, Decision and Law

Bench observed that “When there is an advertisement made for offer placed by the OP and made the offer as per the material available on record and complainant placed the order and same got confirmed, the agreement is complete.”

Another aspect to be noted was that, when the OP had allowed Rockery Marketing at his platform as per written version, the responsibility of the OP could not be lost sight of.

Since there was a breach of contract by OP, OP is held to be liable to pay the damages.

Commission agreed with District Forum’s observation that OP not only negligent in providing service but was also involved in unfair trade practice.

Taking all the factors discussed above for consideration, Bench concluded that compensation awarded should be of Rs 30,000 for unfair trade practice and punitive damages of Rs 10,000. Further, with regard to the cost of litigation Rs 5000 needs to be awarded.

On failing to make the above payments to the complainant within 30 days, the said amounts will carry interest at the rate of 12% per annum.

In view of the above, the appeal was disposed of. [Supriyo Ranjan Mahapatra v. Amazon Development Centre India (P) Ltd., First Appeal No. 492 of 2018, decided on 11-01-2021]


Read More:

District Consumer Forum directs ‘Amazon’ to pay compensation for “deficiency in services”

Case BriefsForeign Courts

Supreme Court of United Kingdom: In the instant appeal where the issue was whether the claimant can recover damages for the “consequences” (including the subsequent loss of liberty) of having committed the criminal offence during a serious psychotic episode, which she would not have committed but for the defendant’s negligence; the 7 Judge Bench of Lord Reed (President), Lord Hodge (Deputy President), Lady Black, Lord Lloyd-Jones, Lady Arden, Lord Kitchin and Lord Hamblen unanimously dismissed the appeal holding that the appellant’s claim for damages against Dorset Healthcare is barred by the appellant’s criminal act of manslaughter, and are therefore irrecoverable by reason of the doctrine of ex turpi causa non oritur actio (from a dishonorable cause an action does not arise) i.e. illegality.

Facts:

The appellant suffers from paranoid schizophrenia or schizoaffective disorder. On 25-08-2010 she stabbed her mother to death while experiencing a serious psychotic episode. She was charged with her mother’s murder but, in view of the psychiatric evidence, the prosecution agreed to a plea of manslaughter by reason of diminished responsibility. The appellant was sentenced to a hospital order under Section 37 of the Mental Health Act 1983 and an unlimited restriction order under Section 41 of the 1983 Act. The appellant has remained subject to detention pursuant to the 1983 Act ever since. Dorset Healthcare University NHS Foundation Trust (respondent) had admitted their negligence in failing to return the appellant to hospital on the basis of her obvious psychotic state. The tragic killing of her mother would not have occurred had this been done. On the basis of the respondent’s admission of negligence, the appellant furthered her claims to recover damages under several heads, such as- General damages for personal injury (a depressive disorder and post-traumatic stress disorder); damages for her loss of liberty caused by her compulsory detention in hospital; damages for loss of amenity arising from the consequences to her of having killed her mother; cost of caretaker and psychotherapy etc.

The relevant laws and case laws on point:

Before analyzing the merits of the instant appeal, the judges deliberated on the laws dealing with murder; insanity as a defence to murder; diminished responsibility as a partial defence to murder (Section 2 of the Homicide Act 1957); The Sentencing Council Guideline directing the sentencing judge to consider whether the offender’s degree of responsibility is high, medium or lower and the provisions of Mental Health Act, 1983 itself.

The Bench also referred to 2 major case laws dealing with similar issues- Gray v. Thames Trains Ltd, [2009] UKHL 33 and Patel v. Mirza, [2016] UKSC 42. In Gray, the House of Lords had held that Mr. Gray’s negligence claim was barred by the defence of illegality because the damages he sought resulted from: (i) the sentence imposed on him by the criminal court; and (ii) his own criminal act of manslaughter. In Patel, the UK SC had held that the proper approach to the illegality defence at common law was one based on a balancing of public policy considerations. In assessing whether the public interest would be harmed in that way, the Court should consider the underlying purpose of the illegality in question, and whether that purpose would be enhanced by denying the claim; any other relevant public policy on which denying the claim may have an impact; and whether denying the claim would be a proportionate response to the illegality.

Observations:

While deliberating on the appeal, the Bench formulated 3 issues– whether Gray can be distinguished; if not, whether Gray should be departed from; and, can the appellant recover the damages under any of heads of loss she has claimed. The Bench observed that key consideration in Gray was that the claimant had been found to be criminally responsible for his conduct, not the degree of personal responsibility which that reflected. The Bench thereby rejected the appellant’s contention and held that, “Gray cannot be distinguished. It involved the same offence, the same sentence and the reasoning of the majority applies regardless of the degree of personal responsibility for the offending”.

Regarding the 2nd issue, the Court while affirming Gray as being Patel compliant” and should be applied and followed in similar cases, held that the policy reasons which support denial of the appellant’s claim include the consistency and public confidence principles identified in Gray. It was further held that, “Principles also include: the public interest in the proper allocation of NHS resources; close connection between her claim and her offence; and the public interest in deterring, protecting the public from and condemning unlawful killing. Although a claimant in the appellant’s position may not be deterred from unlawful killing by being deprived of a civil right to compensation, there may well be a broader deterrent effect in a clear rule that unlawful killing never pays. Any such effect is important given the fundamental importance of the right to life”.

Finally addressing the 3rd issue, the Bench held that the appellant cannot claim damages for loss of liberty or for loss of amenity during her detention in hospital because these losses resulted from the sentence imposed on her by the criminal court. The other heads of loss cannot be recovered either because they result from the appellant’s unlawful killing of her mother.[Ecila Henderson v. Dorset Healthcare University NHS Foundation Trust,  [20203 WLR 1124, decided on 30-10-2020]


Sucheta Sarkar, Editorial Assistant has put this story together

Case BriefsHigh Courts

Calcutta High Court: Ravi Krishan Kapur, J., while addressing an issue pertaining to Employees’ State Insurance Act, 1948, observed that,

The ESI Act provides for certain benefits to employees in case of sickness, maternity and employment injury and makes provisions for certain other matters in relation thereto. A perusal of the various sections of the Act would reveal that the Act is made applicable to all factories.

Present petition was filed challenging an order passed under Section 85B of the Employees’ State Insurance Act, 1948 whereby the Employees’ State Insurance Authorities levied penal damages of nearly Rs 60 lakhs under Section 85B of the Act on the petitioner establishment for the delay in making payment of its contributions for the period from September 2002 to March 2010.

By a conversion agreement between the owner of Jute Mill and petitioner 1, petitioner 1 was allowed to utilize the entire production capacity of the jute mill for the production of jute goods.

Further, the ESI authorities claimed that a sum of Rs 3,73,04,297 was in arrears out of which only a sum of Rs 1,10,97,511 was on account of ESI contributions and the rest represented damages and interest.

Petitioners contended that the above-stated dues said to be payable by the petitioners were primarily for the period prior to the agreement which had been executed between the owners of the jute mill and petitioner 1.

An impugned order came to be passed inter alia holding the petitioner company liable for a sum of Rs 59,61,588 on account of damages for the delayed payment of contributions for the period from September, 2002 to March, 2010.

Petitioner contended that the said order was liable to be set aside and quashed on the ground that the same was an unreasoned order.

Decision

Bench opined that the question as to whether the damages imposed under Section 85B of the Act are justiciable or not or whether the quantum of damages is in accordance with the principles for computing damages is certainly a dispute which would fall within the ambit of clause (g) of Section 75 (1) of the Act.

Court further added that, under Section 75(1)(g) of the Act, the Insurance Court would ordinarily have jurisdiction to decide the question as to whether damages imposed under Section 85B of the ESI Act are justifiable or not.

Bench referred to the Supreme Court decision in B.M. Laxmanamurthy v. Employees’ State Corporation, Bangalore (1974) 4 SCC 365, wherein it was held that

“the Act is a beneficial piece of social security legislation in the interests of labourers in factories at the first instance with the power to extend to other establishments”.

Thus, the Act is a welfare measure meant to provide certain benefits to the employees in certain cases of sickness, maternity and employment injury. It is also a well-settled principle of statutory interpretation that socio-economic legislation should be interpreted liberally with an end to promote the scheme of the Act and avoid the mischief which it seeks to control.

Crux of the dispute in this petition pertains to the applicability and imposition of the damages by the ESI authorities under Section 85B of the Act.

What is the intention behind the insertion of Section 85B of the ESI Act?

To deter the employer who makes any default or delay in depositing the contribution amount.

In the present matter, there was a delay of 8 years on the part of the establishment in making payment of their ESI dues.

Delayed payment, which means untimely payment gives rise to a breach of the obligations under the Act and for such failure and omission (if not explained) the employer exposes itself to recovery of damages.

Hence, the levy of damages as per Section 85B of the Act was fully justified and warranted.

In view of the admitted indisputable and unassailable fact of delay for more than 8 years in making payment of the ESI contributions, no reasonable or prudent person apprised of these facts could take a different view on the question of whether such non-payment on the part of the petitioners was intentional or not.

Petitioner failed to show any mitigating factors or offer any cogent explanation.

Court further added that in the absence of any prescribed special period of limitation for levy of damages under the Act, the levy of damages or penalty for defaults beyond the period of 3 years cannot be rejected as being beyond the jurisdiction of the respondent Corporation.

Section 93A of the Act clearly provides that both the employer and the person to whom the factory or establishment has been transferred remain jointly and severally liable to pay the amounts due in respect of any amount under the Act.

In view of the above-stated Section, Court stated that a transferee cannot claim that he being the transferee of an establishment is not liable to pay the dues accruing before the transfer.

Court found no aspect of limitation insofar as damages were concerned.

Therefore, failure on the part of the establishment to carry out their statutory obligations was in conscious and wilful disregard of their lawful obligations.

“An the absence of any prescribed special period of limitation for levy of damages under the Act, the levy of damages or penalty for defaults beyond the period of three years cannot be rejected as being beyond the jurisdiction of the respondent Corporation.”

Respondent authorities were directed to take all available steps in accordance with law for expeditious recovery of the balance amount payable under the impugned order by the petitioner.[Premchand Jute & Industries (P) Ltd. v. Employees State Insurance Corporation, 2020 SCC OnLine Cal 1574, decided on 18-08-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Pradeep Nandrajog, CJ and Bharati Dangre, J. while allowing the present appeals with regard to failure in showing sufficient cause to seeking review with a delay of 2680 days, stated that,

“It needs no rocket science for anyone to infer that probably the respondent got a premonition that it might lose.”

Facts pertinent to the issue

An agreement was entered between the appellants and respondent, wherein the respondent was to supply bunker fuel to the appellant’s vessel M.T. Antikeros at Mudra Port.  After the respondent supplied the same, 12 days later a dispute arose between the parties regarding the quantity and quality of the fuel. After about a month, the appellant claimed for damages. Respondent denied the liability and raised a counter-claim.

Appellant on 19-03-2009, invoked the arbitration clause, with a view to save arbitration costs, proposed a sole arbitrator. Appellant appointed R.S. Cooper as its arbitrator and called upon the respondent to do likewise. Respondent failed to respond to appoint an Arbitrator. Later Single Judge of the Bombay High Court pursuant to an application filed by the appellant for appointment of an arbitrator on behalf of respondent disposed of the same by appointing J.K. Bhatt as an Arbitrator on 21-04-2011.

The above-stated arbitrator’s appointed T.V. Shanbhag as the Presiding Arbitrator.

On 19-09-2013, Arbitral Tribunal settled the issues which arose for determination.

Respondents challenged the Jurisdiction of the tribunal. Later on 03-08-2018, respondents while filing an application seeking to recall the order passed by the tribunal on 03-07-2013, as also the order dated 19-09-2013, by which order issues were settled.

Though, the tribunal rejected the above application. Further, the respondents challenged the order passed by Single Judge of the Bombay High Court regarding the appointment of J.K. Bhatt as an Arbitrator.

On 30-8-2018 the respondent filed a petition seeking review of the order dated 21-04-2011 passed by this Court. It also sought 7 years delay in filing the Review Application to be condoned.

On 22-03-2018, the impugned order was passed condoning delay of 7 years in seeking review of the order dated 21-04-2011 and simultaneously recalling the said order of appointment of J.K. Bhatt as an Arbitrator on behalf of the respondent.

“Torpedo shot by the respondent on 30-08-2018 hit its target. The Arbitral Tribunal came to be hit, in that, its constitution was blasted by the torpedo fired by the respondent.”

On noting the stated facts, Single Judge noted that the subject matter of the application being an international commercial arbitration the appropriate fora was the Supreme Court of India and thus, the order dated 21-04-2011 was a nullity and is non-est.

Where a Court acts under an appealable provision of law and passes an order, a party is not deprived of the right of appeal, though on the facts the order should not have been passed under that provision

High Court noted that the impugned order being passed in exercise of the review jurisdiction by the Single Judge both the appeals are maintainable.

Court observed that

prior to the amendment of the Act by the Arbitration & Conciliation (Amendment) Act 2015 brought into force with effect from 01-01-2016 when in sub-section 4, 5 & 6 of Section 11 of the Act the words ‘the Chief Justice or any person or institution designated by him’ wherever they occur were replaced by the words ‘the Supreme Court or, as the case may be, the High Court or any person or institution designated by such Court’, the position was that under the Act the procedure for appointment in case of sub-section 3 being applicable was to file an application before the Chief Justice of a High Court or any person or institution designated by him, in a case of domestic arbitration and before the Chief Justice of India or any person or institution designated by him in International Commercial Arbitration.

Section 11 of the Arbitration Act was a Judicial Power was held in 7-Judge Bench decision of the Supreme Court S.B.P. & Co. v. Patel Engineering Ltd., (2005) 8 SCC 618.

Thus, on perusal of the above-stated analysis and facts, Bench held that Single Judge had no jurisdiction to entertain the petition seeking review of the order dated 21-04-2011.

Further, Court stated that, the impugned order is vitiated when it proceeds to condone the delay by not considering whether the sufficient cause was shown to condone the delay of 2680 days in seeking review of the above-stated order.

“Whilst it may be true that an order passed in a lis or an issue which cannot be taken cognizance of by a Court or an authority is void and non-est, but that does not mean that a party can sleep over its rights and participate in further proceedings and one fine day approach the Court or the authority to rectify the error.”

Hence, respondents failed to show sufficient cause entitling it to 2680 days delay in seeking review of the order dated 21-04-2011 to be condoned.

The torpedo fired by the respondent is declared to be a dude and it sinks without hitting its target.

Appellant would be entitled to costs incurred before the Single Judge as also in the instant appeals which bench quantified at Rs 5 lakhs. [Antikeros Shipping Corpn. v.  Adani Enterprises Ltd., 2020 SCC OnLine Bom 277, decided on 18-02-2020]

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of Buwaneka Aluwihare, Priyantha Jayawardena and Murdu N. B. Fernando, JJ., dismissed an appeal which was filed on the ground that the High Court Judge had erred in attaching liability to the defendant to pay damages.

The original action in the High Court was filed in order to recover damages with legal interest from the defendant-appellant for breach of contract. The defendant had entered into an agreement with the Commissioner-General of the Department of Educational Publications in the Ministry of Education (hereinafter “Commissioner-General”) to print several school textbooks and the parties had agreed to print the whole order for a specific amount within a specified deadline. The contention of the Plaintiff was that the defendant had failed to meet the deadline and complete the order and whatever part of the order was complete even that was delivered after the specified deadline because of which the Commissioner General was compelled to commission three other printing agencies to print the remainder. Exercising rights stipulated in clauses (15), (21) and (23) of the Agreement the Commissioner-General, on behalf of the State, sought to recover the damages as it was the defendant’s default that had caused additional expenses. Having failed to secure the recovery by way of a letter of demand, the Attorney General had instituted an action in the High Court, where the Court had answered all the issues raised in favour of the plaintiff. The counsel for the defendant-appellant had submitted that the facts of the case were not disputed but he only wished to canvass the conclusions reached by the trial Judge, the defendant had contended that the Agreement was terminated by mutual consent and not pursuant to a breach basing their arguments on the conduct of the plaintiff such as not serving notice to show cause, not blacklisting the defendant, awarding subsequent contracts and making payments without any deductions in the form of a penalty but there was stark paucity of any evidence and the High Court had held that the defendant had failed to substantiate their position that they were not in breach of the agreement.

The Court while dismissing the appeal explained that they agreed with the Judgment of the High Court as the defendant-appellant had neither produced evidence establishing that they had not fulfilled their obligations nor had they controverted the evidence led by the Plaintiff to this effect. [Tisara Packaging Industries Ltd. v. Attorney General, SC CHC Appeal No. 17 of 2010, decided on 18-10-2019]

Case BriefsHigh Courts

Karnataka High Court: S.G. Pandit, J. while disposing of this Civil Revision Petition filed under Section 115 of Civil Procedure Code set aside the order of the lower Court.

In the instant case, the application of the petitioner filed under Order 17 Rule 1 and 2 CPC was rejected by an order on 16.02.2019 for non-deposit of arrears of rent. Aggrieved by this, the petitioner had assailed this order.

The petitioner, a tenant filed R.A. No. 24 of 2015 against the Judgment and Decree of the Civil Judge and JMFC, Nagamangala. The application was for seeking fifteen days’ time for payment of arrears of rent/damages. But, it was rejected by the Trial Court on the ground that no undertaking was filed as to on which date it will be given and no bonafide was given. As a consequence of this, R.A. No. 24 of 2015 was also dismissed.

The petitioner deposited a sum of Rs 66,000 before this Court against the aforesaid payment of arrears of rent/damages.

N. Manjunatha, Counsel for the Respondent submitted that the above amount shall cover till the month of May 2019.

To this D.S. Hosmath, Counsel for the petitioner submitted that the remaining will be submitted before the Appellate Court.

The Court after analysing the facts and circumstances of the case observed that instead of rejecting the application outright, some reasonable time should have been granted. The Court also directed the appellate court to hear the appeal on merits.[Channappa v. M.R. Narayanashastry, 2019 SCC OnLine Kar 1836, decided on 17-09-2019]

Case BriefsForeign Courts

South Africa High Court, Free State Division, Bloemfontein: V.M. Morobane, AJ. adopted the method of actuarial computation while awarding compensation to the plaintiff.

This case arises out of a motor collision which occurred on 16-02-2012. As per the Road Accident Fund Act (56 of 1996), a defendant has to pay for all loss or damage incurred by a victim of an accident in a motor vehicle.

The plaintiff claimed for general damages for the loss and damage he incurred. But, it was rejected. Now, that his claim got rejected the only issue remained to be determined was quantum for loss of earning capacity. The plaintiff’s testimony led to the other four witnesses.

The plaintiff worked in a company named Deboning as a delivery person. He had a code 8 driver’s license. He testified that due to his injuries he lost control of the clutch while driving. Moreover, he could not carry heavy objects nor stand for more than ten minutes. Thereafter, he was dismissed.

The second witness, supervisor to the plaintiff at the time of the accident testified that the plaintiff was retrenched by the employer as the business went into liquidation. The third witness testified that the plaintiff’s job was lighter and less physical. He got less productive after the accident. The fourth witness recommended that the plaintiff should only perform the sedentary type of work. The first witness testified that the plaintiff will not be able to perform strenuous activities.

The Court observed in light of the evidence that the plaintiff could still drive although it would be harmful to him to do so. The plaintiff is entitled to a sum of money which would restore him to the position before the accident. The Court cited some cases.

In Southern Insurance Association Ltd. v. Bailey, 1984 (1) SA 98 (A) at 116G, it was set out that where the method of actuarial computation is adopted a Judge has “a large discretion to award what he considers right”.

In AA Mutual Insurance Assn. Ltd. v. Maqula, 1978 (1) SA 805 (A) at 809A-B, a trial court has wide discretion in the matters of awarding compensation.

In terms of these cases, the defendant was directed to pay a sum of Rs 513 646 for loss of earnings and ordered to furnish an undertaking to bear the costs of future medical expenses of the plaintiff arising out of injuries sustained in the motor collision.[Minnie Dawood v. Road Accident Fund, Case No. 1913 of 2014, decided on 01-08-2019]

Case BriefsForeign Courts

Supreme Court of the United Kingdom: A Bench of Lady Hale, President and Lord Reed, Deputy President and Lord Carnwath, Lord Llyoyd-Jones and Lady Arden allowed an appeal filed against the Judgment of Northern Ireland Court of Appeal concerning a stay granted on the proceedings for a claim of damages under Section 8 of the Human Rights Act, 1998.

The appellant’s son, Pearse Jordan, was shot and killed by a member of Royal Ulster Constabulary in November, 1992. His father, Hugh Jordan, made an application to the European Court of Human Rights complaining that the failure to carry out a prompt and effective investigation into his son’s death. He sought a declaration that the Coroner and Police Service of Northern  Ireland had been responsible for delay in the commencement of the inquest in violation of his rights under Article 2 of the European Convention on Human Rights together with awards of damages under Article 8 of the Human Rights Act. Subsequently, the proceedings were taken over by his wife, the appellant, following his deteriorating health.

The delays in the investigation into Pearse Jordan’s death, and the repeated litigation which has characterised that process, are a common feature of what has come to be known as “legacy” cases: that is to say, cases concerning deaths occurring in Northern Ireland during the “Troubles”. In his recent judgment, Hughes’ Application for Judicial Review, In re, [2018] NIQB 30, Sir Paul Girvan found that there was a systematic delay in these cases, arising from a lack of resources to fund inquests of the length, complexity and contentiousness involved.

The Court Appeal, after considering the provisions of the Human Rights Act, laid down a general rule that claims of the present kind could not be brought before the conclusion of an inquest, and that any claims which had been brought before that stage should be stayed until then. This was, however, clarified by the Court of Appeal in a subsequent decision in McCord’s Application for Judicial review, In re, unreported, 18-1-2019, which judgment appears to confine the general rule prescribed in the present case to those cases where the only outstanding issue is damages and where an inquest can be expected to begin within the near future, if not already underway.

The present appeal was brought against the Judgment of the Court of Appeal staying the proceedings brought by Hugh Jordan until the completion of inquest. The Supreme Court was of the view that the appeal ought to be allowed. It was discussed that a stay on proceedings can be ordered in appropriate circumstances even n cases brought by persons claiming a violation of their Convention rights, however, regard must be had to three important aspects of the Convention rights:

(a) Rights that are practical and effective: Convention rights must be applied in a way which renders them practical and effective, not theoretical and illusory. The effectiveness of the right under article 2 to have an investigation into a death begin promptly and proceed with reasonable expedition could be gravely weakened if there were a general practice of staying proceedings seeking to secure the prompt holding of an inquest, typically by obtaining a mandatory order or a declaration.

(b) Determination within a reasonable time: The staying of proceedings will be unlawful if it results in a breach of the “reasonable time” guarantee in Article 6 of the Convention. That would be a real possibility in some cases if stays until after the completion of an inquest were ordered as a general rule. That right under Article 6 is distinct from Article 2.

(c) Proportionality of restrictions on access to the Courts: Since a stay of proceedings prevents a claim from being pursued so long as it remains in place, it engages another aspect of Article 6 of the Convention, namely the guarantee of an effective right of access to a court. That exercise requires consideration of the circumstances of the individual case before the court.

The Supreme Court observed: “There is no doubt that there may be cases in which it is proportionate to impose a stay on a claim for damages in a legacy case, weighing the relevant factors for and against it. There is equally no doubt that there may be cases in which, weighing those factors, a stay is not proportionate. Since the relevant factors can differ in nature and weight from one case to another, it follows that courts should carry out the necessary balancing exercise in the individual case. A virtually automatic rule requiring all such claims to be stayed until after the inquest, regardless of their individual circumstances, would not comply with that requirement, and in addition, as previously explained, would result in breaches of the reasonable time requirement of Article 6.”

It was held that the decision of the Court of Appeal was not consistent with the foregoing principles. It did not involve an assessment of proportionality. It was also stated that it is uncertain whether the court would have ordered the stay if such an assessment had been conducted, particularly if Hugh Jordan’s ill health had been drawn to its attention. In such circumstances, the appeal was allowed. [Hugh Jordan’s Application for Judicial Review, In re, [2019] UKSC 9, dated 06-03-2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of A.M. Dhavale, J. dismissed a second appeal filed against the order made in first appeal wherein it was held that the plaintiffs were not entitled to claim damages for wrongful possession of rented premises by the defendant.

The plaintiffs were owners of the subject property which was let out to Nizam Government which handed it over to Zila Parishad. In the year 1990, Zila Parishad terminated its own tenancy and directed its officials yo handover the possession of the property to plaintiffs. However, this direction was not complied with. It was also an admitted fact that plaintiffs did not take any step to recover the possession of the property and were now directly before the Court claim damages for wrongful possession by Zila Parishad.

Question before the Court was “Whether the landlord would be entitled for damages after termination of tenancy if he does not take any step for recovery of possession for more than 12 years after termination?”

The High Court referred to Chander Kali Bai v. Jagdish Singh Thakur, (1977) 4 SCC 402 wherein it was observed, “if a tenant continues in possession after termination of contractual tenancy, he would not be liable for damages till the decree for eviction is passed.” In the instant case, no decree for eviction was passed. The tenant Zila Parishad itself terminated the tenancy. In such case, the landlord plaintiffs were bound to file suit for possession. He could not directly file suit for damages for the amount not agreed under the contract. Furthermore, damages by way of mesne profits can be awarded under Order 20 Rule 12 only from the date of decree for possession for the period for which the possession is wrongfully retained in spite of the decree. In such view of the matter, the second appeal was dismissed. [Arvind v. State, 2018 SCC OnLine Bom 6069decided on 10-12-2018]