Madras High Court
Case BriefsHigh Courts

   

Madras High Court: In an application filed by Viacom 18 praying for restraining several cable and internet service providers involved in illegal activities and unauthorised retransmitting, recording, streaming, audio-visual clips and full sports event of FIFA World Cup, 2022, M.Sundar, J. has granted interim injunction in favour of Viacom18 and restrained several cable and internet service providers from broadcasting the FIFA World Cup.

Viacom claimed that Federation Internationale De Football Association (FIFA) has granted it licence and various media rights including exclusive television rights, radio rights, mobile transmission rights and broadband transmission rights for the territories of Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. Further, it also has exploitation rights including distribution, broadcast, streaming of the series within the defined territories. Thus, such activities by unauthorised cable providers can cause heavy loss, damage and prejudice to Viacom 18.

The Court examined the aspects of prima facie case, balance of convenience and irreparable injury, that are necessary parameters for grant of injunction, and said that regarding the prima facie case, there is no difficulty in accepting prima facie that Viacom 18 is the owner of the copyright in the sporting event. In terms of balance of convenience, if interim order is not granted now, it would result in alleged piracy being completed in all and every aspect of the matter. Thereafter, it will lead to an irreversible situation and therefore, irreparable injury incapable of compensation parameter has also been satisfied.

Thus, the Court granted interim injunction (till 16-12-2022) restraining the respondents or any other person or entity from infringing copyright in the aforesaid sporting event, in any manner to prevent copying, transmission, communication, displaying, releasing, showing, hosting, streaming, uploading, downloading, exhibiting, playing and exhibition of the sporting event. Further, it directed the respondent to block the websites or web pages if it becomes necessary.

[Viacom18 Media Private Limited v. Bharath Sanchar Nigam Limited, 2022 SCC OnLine Mad 5390, decided on 18-11-2022]


*Apoorva Goel, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: In a case filed by CROSSFIT gym (‘Plaintiff’) having CROSSFIT trademarks seeking permanent injunction against defendant gym using the identical mark, Prathiba Singh, J. granted permanent injunction against defendants and imposed a cost of Rs 10 lakhs to be paid to the plaintiff within three months. The Court also issued contempt notice against the proprietor of the defendants to show cause why contempt must not be initiated against him and his company, as they continued using the CROSSFIT mark under challenge, in blatant violation of interim injunction being granted.

The Plaintiff claims to be the proprietor of the registered trademark ‘CROSSFIT’ used in respect of services in the health, fitness and nutrition sector, providing services for strength training, fitness programs in addition to conducting fitness seminars and providing trainer certifications. The Plaintiff coined and adopted the mark ‘CROSSFIT’ in the year 1995 and has been continuously and extensively using the said mark in respect of its products and services. The Plaintiff also registered the domain name ‘www.crossfit.com’ in October, 1999.

The grievance of the Plaintiff is that the Defendant is a gym and fitness center owned and operated by its proprietor Mr. Arun Sharma and is using the identical mark ‘CROSSFIT’ in respect of identical services relating to gym and fitness. The case of the Plaintiff is that the Defendant has been prominently displaying the mark ‘CROSSFIT’ at its premises, literature, online pages as well as on various online directories and social media platforms, including Facebook, Instagram, Justdial, Fitternity etc.

A legal notice dated 29-09-2020 and notice regarding pre litigation mediation was issued to which no reply was received. No reply has been received for emails, telephonic calls or summons by Court. However, on the date of listing of the matter, an ex parte ad-interim injunction was granted on 29-10-2021 which was made absolute on 15-02-2022.

Placing reliance on Disney Enterprises Inc. v. Balraj Muttneja, 2014 SCC OnLine Del 781, wherein the Court held “where the defendant is ex parte and the material before the Court is sufficient to allow the claim of the plaintiff, the time of the Court should not be wasted in directing ex parte evidence to be recorded and which mostly is nothing but a repetition of the contents of the plaint.”

Thus, the Court decreed the suit and granted permanent and mandatory injunction in favour of the Plaintiff as they were able to make out a prima facie case.

The Court on further coming to knowledge of the fact, that defendant is not complying with the interim order and continuing to use the mark ‘CROSSFIT’ despite the injunction granted, without choosing to defend the plaintiff’s claim or reply to the notices issued. Thus, the Court awarded Rs. 10,00,000 in favour of the Plaintiff due to brazen violation of the orders of the Court by the defendant.

The Court noted that the conduct of the Defendant in the present case prima facie amounts to contempt. The Court issued contempt notice to the defendant’s proprietor Mr. Arun Sharma to show case as to why contempt action ought not to be initiated.

The Court directed the plaintiff to approach the concerned social media platforms for taking down of the infringing listing and posts of the Defendant, using the mark ‘CROSSFIT’, which shall be taken down, within 48 hours.

The Court further appointed Ms. Meghna Jandu, Advocate as the Local Commissioner, subject to the mandate listed by the Court, to visit the premises of the Defendant to ensure compliance of the orders of the Court by removing any hoardings and any other billboards, signage, display material, brochures, packaging, and literature bearing the mark ‘CROSSFIT’.

[CROSS FIT LLC v RTB GYM and Fitness Center, 2022 SCC OnLine Del 2788, decided on 06-09-2022]


Advocates who appeared in this case :

Mr. Saif Khan and Mr. Shobhit Agrawal, Advocates, for the plaintiff;

None for the defendant.


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

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: Krishnan Ramasamy, J. has granted interim injunction against YouTuber Savukku Sankar, restraining him from making defamatory remarks against Electricity Minister Senthil Balaji, and has observed that, Sankar prima facie, appears to have indulged in slander having posted various videos and tweets in social media platforms namely, YouTube, Twitter, etc. with false and disreputable claims against the applicant/plaintiff, who is a political executive, and this would, prima facie stain the personal and professional reputation of the applicant in society.

The suit was filed for damages and for mandatory injunction, restraining Sankar from, in any way, making, printing, publishing, broadcasting, disseminating or circulating the statements, articles, pictures, cartoons, caricatures, sketches, tweets and videos or any other defamatory statements, which causes damage or tends to lower the reputation of the applicant on social media.

Tamil Nadu Electricity Minister V Senthil Balaji submitted that Sankar is a suspended employee of the Department of Vigilance and Anti-Corruption and claims himself as a self-styled journalist, habitually defaming all the occupants of constitutional and executive offices and used to post videos and interviews in social media platforms, like YouTube and Twitter, etc.

Balaji further submitted that Sankar had the sole intention to defame the applicant, as he continuously made wild, false and defamatory statements against the applicant to tarnish his personal and professional reputation. For instance, Sankar posted some videos on YouTube, wherein, he made erroneous allegation against Balaji that

  • he is running all the TASMAC Bars in Tamil Nadu; that

  • he provided solar power plants on payment of 20 lakhs per megawatt;

  • he, while serving as the Minister for Transport, was involved in the job scam of 200-300 crores, and that he has given 200 crores to the DMK party for election expenses.

Further, Sankar published an alleged tweet on Twitter, that a person named Baskar died mysteriously and suicide note contains Balaji's name.

The Court observed that

“In a democratic set up, no one has right to disparage the reputation of another. In this case, the respondent, prima facie, appears to have indulged in slander having posted various videos and tweets in social media”

The Court further viewed that the applicant has made out prima facie case and balance of convenience is in favor of the applicant and if interim injunction is not granted, the applicant would be put to irreparable hardship. Hence, the court granted the interim injunction in favor of the applicant, restraining the respondent from making any defamatory remarks.

The matter will next be taken up on 09.09.2022.

[V Senthil Balaji v. A Shankar, OA. No. 509 of 2022, decided on 23-08-2022]


Advocates who appeared in this case :

For V Senthil Balaji: Senior Advocate AR. L. Sundaresan

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Flipkart (‘defendant’) was sued by V Traditions (‘plaintiff’) for infringing its mark by allowing third party sellers to latch on to the plaintiff product listings featured as best sellers, Prathiba M Singh J. restrains Flipkart from allowing any third-party sellers from ‘latching on’ to the mark ‘V Tradition’ used by the Plaintiff or the Plaintiff’s product listings under the mark/name ‘V Tradition’, so as to ensure that third-party unauthorized sellers are unable to misuse the name and product listings of the Plaintiff.

The present suit was filed by the Plaintiff seeking various reliefs including permanent and mandatory injunction restraining trademark infringement and passing off etc against Defendant 1- Flipkart Internet Private Limited and various John Doe sellers. The suit was filed by the Plaintiff for the protection of its rights in the mark ‘V Tradition’ used in relation to clothing for women. It is the case of the Plaintiff that various sellers have unlawfully latched on to the product listings created by the Plaintiff on Flipkart platform as ‘more sellers’ of Plaintiff’s products.

What is ‘Latching of’?

The Court noted that in the present case whenever a seller wishes to place some listings in a specific product category, a recommendation on the basis of the business conducted on its portal is given as to which are the ‘Best Seller’ products. The caption “Grow your business by 3x” along with specific data, is also projected in order to entice the new seller to ‘latch on’ to popular product listings. The said seller is then permitted to ADD the LISTING to his listing page. While giving this recommendation, the mark ‘V Tradition’, as also, the product photographs of the Plaintiff is permitted to be added by the third-party seller, without the permission or consent of the Plaintiff. It is, thus, clear that product listings of the Plaintiff are being permitted to be used along with the Plaintiff’s brand name and image/s of the product created by the Plaintiff. The said brand name and photograph then becomes a part of the product listings of the third-party unauthorized seller who can then make similar looking products and sell them as though they originate from ‘V Tradition’.

The Court observed by documents placed on record that the Flipkart platform is permitting other third-party sellers to ‘latch on’ to the best sellers in one particular segment of products, resulting in various third-party sellers misusing the Plaintiff’s Brand/mark. Such a feature cannot be allowed to be used or offered, to the detriment of the owner of the brand or the person who has created the original product. Consent and authorization of the brand owner and the listing owner would be required before such conduct by any seller is permitted, the Court held the Plaintiff has made out a prima facie case for the grant of an interim injunction against Flipkart. In the opinion of this Court, the balance of convenience lies in favour of the Plaintiff and irreparable injury would be caused to the Plaintiff if an interim injunction is not granted.

Thus, the Court noted that permitting a third-party seller to ‘latch on’, in this manner, to the Plaintiff’s name/mark and product listings is nothing but `riding piggyback’ as is known in the traditional passing-off sense. It amounts to taking unfair advantage of the goodwill that resides in the Plaintiff’s mark and business.

The Court restrained Flipkart from allowing any third-party sellers from ‘latching on’ to the mark ‘V Tradition’ used by the Plaintiff or the Plaintiff’s product listings under the mark/name ‘V Tradition’, so as to ensure that third-party unauthorized sellers are unable to misuse the name and product listings of the Plaintiff.

 

The Court further directed Flipkart to ensure that the ‘latching on’ feature is disabled qua the mark ‘V Tradition’ used by the Plaintiff till the next date of hearing. The Court passed restrain orders against all such third-party sellers from ‘latching on’ to the product listings of the Plaintiff and misusing the product listings and mark/name ‘V Tradition’, for promoting their products which are not connected to the Plaintiff, in any manner.

 

It was further directed to the counsel of Flipkart to supply a list of URLs and any other available details of all such infringing third-party product listings within two days. Upon receipt of the same, all the said product listings shall be disabled or taken down, within 48 hours along with a list having contact details, of all the third-party sellers, who have availed themselves of the ‘latching on’ feature in respect of the Plaintiff’s mark/name ‘V Tradition’ and products sold under the said mark, to the Counsel for the Plaintiff.

[Akash Agarwal v Flipkart Internet Private Limited, CS (COMM) 492 of 2022, decided on 02-08-2022]


Advocates before Court-

For Plaintiff: Mr. Anshuman Upadhyay and Mr. Naseem Prashant, Advocates.

For Defendant: Mr. Rajiv Nayyar, Sr. Advocate with Ms. Manjra, Mr. Sidharth Chopra, Ms. Shilpa Gupta, Ms. Surabhi Pande and Mr. Kuber, Advocates


*Arunima Bose, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Mini Pushkarna, J. granted ad interim injunction against Pawan Khera and others (‘defendants’) who allegedly organized a Press Conference dated 23-07-2022 from New Delhi wherein various wild and defamatory allegations were made against Smriti Zubin Irani (‘plaintiff’) without any substance, pertaining to a statutory license in respect of food and beverages operations at a restaurant, named, Silly Souls Cafe and Bar, located in Goa.

Smriti Irani (‘plaintiff’) is a highly respected citizen of the country and a Minister in the Union Cabinet of India, currently administrating the Ministry of Women and Child Development and Ministry of Minority Affairs. It was alleged that the defendant 1, 2 and 3 organized a Press Conference on 23-07-2022 from New Delhi. During the course of the Press Conference, various wild and defamatory allegations were made against the plaintiff without any substance, pertaining to a statutory license in respect of food and beverages operations at a restaurant, named, Silly Souls Cafe and Bar, located in Goa.

Various false and defamatory contents of the utterances of the defendant 1, 2, 3 in the Press Conference were used and continued to be used by the defendant 1, 2, 3 and various other individuals and entities, directly and indirectly disseminating such and similar misrepresentation on various social media websites . Aggrieved by this, an application was filed under Order XXXIX Rules 1 & 2 read with Section 151 Civil Procedure Code (‘CPC’) by the plaintiff seeking an ad-interim injunction.

The Court noted after perusing various documents filed before the Court by the plaintiff and also the excerpts from the Press Conference carried out by the defendant Nos. 1, 2, 3, that slanderous and libelous allegations have been made against the plaintiff without verifying the actual facts. Great injury has been caused to the reputation of the plaintiff and her family in view of the various tweets and re-tweets which have followed the Press Conference carried out by the defendant Nos. 1, 2 & 3.

Placing reliance on Ram Jethmalani v. Subramaniam Swamy, 2006 SCC OnLine Del 14, the Court observed that considering the documents on record it is clear that there was no license ever issued in favour of the plaintiff or her daughter. The plaintiff or her daughter are not the owners of the restaurant, infact they never applied for a license. Neither the restaurant nor the land on which the restaurant exists is owned by the plaintiff or her daughter, even the show cause notice issued by the Government of Goa is not in the name of the plaintiff or her daughter as also stands affirmed in the affidavit by the plaintiff.

The Court held the plaintiff has been able to make out a prima facie case. Balance of convenience also lies in favour of the plaintiff and against the defendants. Thus, if the defamatory allegations and contents linked to it, is allowed to remain on the internet and social media platforms, then the extent of damage to the plaintiff could be of immense magnitude and injurious to the reputation of the plaintiff and her family.

The Court thus passed an ad-interim injunction directing defendant 1, 2 & 3 to delete and remove the allegations, video of impugned Press Conference dated 23-07-2022 and the contents linked to the same published against the plaintiff from all the social media platforms, namely, YouTube, Facebook, Instagram and Twitter.

The Court further directed the defendant 4 to 6 to remove the allegations, videos, posts, tweets, re-tweets, captions, taglines along with the morphed pictures of the plaintiff and her daughter along with the underlined material with such defamatory content or anything similar thereto including recirculation on their respective platforms. In case of failure to comply with the directions within 24 hours of pronouncement of the order, defendant 4 to 6 are directed to take down the tweets and other materials on the URLs as well as other tweets which may appear in the plaint thereof.

[Smriti Zubin Irani v. Pawan Khera, 2022 SCC OnLine Del 2310, decided on 29-07-2022]


Advocates who appeared in this case :

For Plaintiff: Mr. Rajiv Nayar, Mr. N.K. Kaul, Ms. Pinky Anand, Sr. Advocates with Mr. Kirat Singh Nagra, Mr. Kartik Yadav, Mr. Pranav Vyas, Mr. Manhar S. Saini, Mr. Hardik Jain, Ms. Sumedha Chadha, Mr. Saurabh Seth, Mr. Dhruv Sharma, Mr. Anil Soni, Advocates

For Defendant: Counsel for D-1, 2 3 (appearance not given). Mr. Dayan Krishnan, Sr. Advocate with Mr. Saransh Jain, Mr. Ankit Agarwal, Ms. Shloka N., Mr. Shaurya Rai, Mr. Sanjeevi, Mr. Sukrit, Advocates for D-6/Twitter, Inc


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Explaining the scope of interference in matters relating to Government contracts and tenders, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that even if the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract.

The matter dealt with the construction of the Nagaruntari – Dhurki – Ambakhoriya road in the State of Jharkhand. When issue arose, the High Court of Jharkhand stayed the construction of the Road. On this the Supreme Court observed that since the construction of road is an infrastructure project and keeping in view the intent of the legislature that infrastructure projects should not be stayed, the High Court would have been well advised to hold its hand to stay the construction of the infrastructure project. Such provision should be kept in view even by the Writ Court while exercising its jurisdiction under Article 226 of the Constitution of India.

It said,

“The Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues. The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfering in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work.”

In the case at hand, the State has paid over a sum of Rs.3,98,52,396/- to the appellant till date, though the stand of the appellant is that it had submitted bills of work of Rs.8.5 crores. The termination of contract would cause additional financial burden on the State and also deprive the amenity of road for a longer period.

The Court was of the opinion that the action of the respondent in setting aside the letter of acceptance granted to the appellant suffered from manifest illegality and cannot be sustained and consequently, the State was directed to allow the appellant to resume and complete the work by excluding the period spent in the stay of execution of the contract.

Mentioning a word of caution, the Court said that any contract of public service should not be interfered with lightly and in any case, there should not be any interim order derailing the entire process of the services meant for larger public good.

“The grant of interim injunction by the learned Single Bench of the High Court has helped no-one except a contractor who lost a contract bid and has only caused loss to the State with no corresponding gain to anyone.”

The Court also observed that multiple layers of exercise of jurisdiction also delay the final adjudication challenging the grant of tender. Therefore, it would be open to the High Courts or the Hon’ble Chief Justice to entrust these petitions to a Division Bench of the High Court, which would avoid at least hearing by one of the forums.

[NG Projects Ltd. V. Vinod Kumar Jain,  2022 SCC OnLine SC 336, decided on 21.03.2022]


*Judgment by: Justice Hemant Gupta

Case BriefsHigh Courts

Delhi High Court: Subramonium Prasad, J., granted an interim injunction in favour of Tata Sons (P) Ltd. in a case where the defendant has got a domain name registered which is identical to the website of their e-commerce arm.

Plaintiffs’ Counsel, Pravin Anand submitted that plaintiff 1, holding company of the TATA Group of Companies was the owner and registered proprietor of the trademark TATA as well as the device mark TATA. Plaintiff 2 was a part of the TATA Group and engaged in the business of e-commerce, dealing in various products through its e-commerce platform www.tatacliq.com.

It was submitted that the above domain name was registered by plaintiff 2 and defendant 1 was the owner of the domain name: www.tatacliqsmart.com which is identical with the plaintiff’s website.

Adding to the above submissions, it was stated that the defendant had added the word ‘smart’ in the domain name which was not permitted. Defendant was selling the products of plaintiff 1 company on its website, which amounted to infringement of the plaintiffs registered trademark and copyrights.

Another contention was that defendant 1 through its website www.tatacliqsmart.com was selling various TATA products at throw away prices and there was a likelihood that by using the word TATA the defendant would be selling the products which were not actual products of TATA but fake products.

Bench tried opening the website www.tatacliqsmart.com and found that the website could not be opened, however, the screenshots produced by the plaintiffs show that the website was being used for online sale of several products including products of plaintiff 1. Hence it was apparent that defendant 1 had shut down the website only because the present suit was filed.

Court opined that the plaintiffs made a case of grant of interim injunction.

Matter to be listed before the Roster Bench on 19-07-2021. [TATA Sons (P) Ltd. v. Electro International, 2021 SCC OnLine Del 3743, decide on 28-06-2021]


Advocates before the Court:

For the Plaintiffs: Mr Pravin Anand, Mr Achuthan Sreekumar and Mr Rohil Bansal, Advocates

For the Defendants: Mr Mrinal Ojha and Mr Debarshi Dutta, Advocates for Defendants Nos.2 and 3.


About Justice Subramonium Prasad:

Justice Subramonium Prasad graduated in B.Com. (Hons.) from Delhi University. He acquired his LLB degree from Campus Law Centre, Delhi University in the year 1990. Justice Prasad cleared the Advocate-On–Record exam in 1996 and started his independent practice. He became the Standing Counsel for the State of Tamil Nadu in the Supreme Court of India in 2003, a post he held till 2006. He was also the standing counsel for the custodian appointed under the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, dealing with cases pertaining to the 1992 stock exchange scam. In October 2012, Justice Prasad was appointed as the Additional Advocate General for the State of Tamil Nadu in the Supreme Court of India. Justice Prasad was designated as a Senior Advocate by the Supreme Court of India in April 2015.

Over his career spanning 28 years, Justice Prasad has worked on several high profile matters, and has been involved in several reported judgements of the Supreme Court on various subjects like Constitutional Law, Tax, Corporate and Commercial Law, Criminal Law, Election Law, Service Law and Inter-State River Water Disputes.

Justice Prasad was appointed as an Additional Judge of the Madras High Court on 4.06.2018. He was transferred to Delhi High Court as an Additional Judge on 13.03.2020 and confirmed as a Permanent Judge of the Madras High Court on 17.03.2020.


Source: Delhi High Court Website

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J., granted ad-interim injunction and directed the meaww.com to take down defamatory and malicious articles against Daniel Snyder.

Plaintiff sought exemption from filing the originals documents and attested affidavits in support of the plaint, statement of truth and the certificate under Section 65-B of the Indian Evidence Act.

Defendants are represented by the Counsel, S.D. Sanjay, Senior Advocate with Akshay Amritanshu, Advocate.

Present suit has been filed by the plaintiff in respect of the publishing of the defamatory and malicious publications levelling serious allegations against the plaintiff insinuating the plaintiff to the extent that he is facing allegations of sex trafficking and is associated with sexual predator Jeffrey Epstein.

Plaintiff states that the above-stated news articles are false, frivolous and baseless and freely available in the public domain.

The reputation of the plaintiff has also been lowered due to the said articles in the eyes of the public.

Plaintiffs counsel asked the defendants to take down the impugned URL’s/weblinks from their platform for which defendants stated that the needful has been done and no further action was required.

Further, the plaintiff stated that no action has been taken yet and the posts are still available due to which the present suit has been filed.

Court on perusal of the averments in the plaint and documents filed therewith opined that the plaintiff had made a prima facie case against the defendants and if no ad interim injunction is granted, the plaintiff would suffer an irreparable loss.

Defendants have been directed to:

  • take down, remove and/or block/restrict the allegedly defamatory articles.
  • disclose the basic subscription information in respect of the person/persons who had uploaded the allegedly defamatory articles on its platform.

Hence, till the next date of hearing an ad-interim injunction in favour of the plaintiff was granted.

Court listed the suit and application for 02-11-2020. [Daniel Snyder v. Eleven Internet Services LLP, 2020 SCC OnLine Del 1058, decided on 21-08-2020]

Kerala High Court
COVID 19Hot Off The PressNews

As reported by ANI, Kerala High Court refuses to grant interim injunction on the State Government Ordinance with regard to deferment of salaries of Government employees for 6 months due to COVID-19 Outbreak.

Bench of Justice Bechu Kurian Thomas held the above decision while addressing the petitions that challenged and stated the , 2020 to be violative of the Constitution of India.

The above stated ordinance was brought in after the Kerala High Court had stayed an order of State Government for 2 days wherein the 6 days salaries of all State Government Employees were deferred for 6 months in view of the financial burden due to COVID-19.

“The purpose behind the ordinance was to only defer an amount payable to a certain specified class of employees belonging to certain specified institutions. The Ordinance itself provided that the Government will notify a mechanism for paying back the deferred amount and it does not partake in taking away the rights of employees,” the court said.

[Story to be updated shortly]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of I.P. Mukerji and Md. Nizamuddin, JJ., allowed an appeal filed against the order of the Single Judge whereby he had rejected the appellant-plaintiff’s application for grant of interim injunction restraining the respondent-defendant from using the subject trademark.

The appellant and the respondent were in the business of manufacturing TMT bars. The appellant was the registered proprietor of the word mark “Shyam” and label marks featuring this word prominently. The appellant filed a suit for infringement of the said trademark and passing off against the respondent. The interlocutory application filed by the appellant for grant of interim injunction till the disposal of the suit was rejected by the Single Judge as noted above. Aggrieved thereby, the appellant approached the High Court.

Two main contentions advanced on behalf of the respondent were: Firstly, that the registration of the mark “Shyam”, which is the name of a God, was invalid. And secondly, it was contended that the appellant filed the suit after a considerable delay and, therefore, the defence of acquiescence was available to the respondent.

Regarding the first contention, the High Court, relying on Lal Babu Priyadarshi v. Amritpal Singh, (2015) 16 SCC 795, held that it could not be said as an infallible principle of law that registration of the word “Shyam” was invalid and it should be cancelled. The respondent has to prove, by leading cogent evidence, before the Board, that indeed the name ‘Shyam’ refers to God only, is not distinctive of the appellant, is generic and common. Hence, its registration was invalid. Since, at the instant stage, the respondent was not able to establish this even prima facie, the Court rejected the first contention.

Coming to the second contention, the Court noted that the appellant was aware of the use of their trademark by the respondent since at least December 2015. Yet, the appellant took their own time in filing the suit and applying for an injunction, i.e., in 2019. However, the Court was of the view that the appellant could not be accused of acquiescing to the use of their trademark by the respondent, though it could be said that they took no action to restrain the respondent from using it. Reliance was placed on Power Control Appliances v. Sumeet Machines (P) Ltd., (1994) 2 SCC 448, wherein the Supreme Court has said that acquiescence would only arise out of the positive acts and not merely by silence or inaction. It has gone to the extent of saying that acquiescence was “one facet of delay”.

In such view of the matter of the Court, considering the prima facie case and balance of convenience, ordered that the respondent would be injuncted from using the trademark in question till the disposal of the infringement suit filed by the appellant, which effect from 1-5-2020, by which date, the respondent was permitted to clear the existing stock. [Shyam Steel Industries Ltd., v. Shyam Sel & Power Ltd., 2019 SCC OnLine Cal 5177, decided on 24-12-2019]

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Dr S. Muralidhar and Talwant Singh, JJ. allowed the appeal filed by Natco Pharma Ltd. and quashed the order of the Single Judge restraining Natco Pharma from infringing the suit patent held by Bristol Myers. 

The plaintiff, Bristol Myers is a company incorporated in Ireland. Bristol Myers averred that they were registered owners of the suit patent which covers a molecule having an International Non-proprietary Name (INN) “Apixaban” used in the prevention and treatment of thromboembolic diseases. Natco Pharma had filed a petition before the Intellectual Property Appellate Board seeking revocation of the suit patent, which petition is still pending. Bristol Myers brought the present suit because as per its information, Natco Pharma was planning to launch a generic version of Apixaban under the probable brand name “Apigat”. Bristol Myers made prayers for a permanent injunction, restraining the Natco Pharma from using, making, selling, storing, distributing, advertising, marketing, exporting, offering for sale, importing or in any other manner directly or indirectly dealing in any product, including but not limited to Apigat that was alleged to infringe the subject matter of the suit patent. Along with the suit, Bristol Myers also filed an application seeking an interim injunction under Order 39 Rules 1 and 2 CPC. 

Before the Single Judge, Natco Pharma appeared on caveat. The Single Judge, however, passed the order of interim injunction as mentioned above on the lines of an earlier order in Sterlite Technologies Ltd. v. ZTT (India) (P) Ltd., CS (Comm) No. 314 of 2019, dt. 31-5-2019. Aggrieved, Natco Pharma filed the present appeal. 

Sai Deepak, Advocate representing Natco Pharma, contended that the impugned interim order was contrary to the settled law explained in several decisions of the Supreme Court in the matter of granting ad interim injunction. Per contra, Senior Advocate Amit Sibal appearing for Bristol Myers supported the order and submitted that it was dishonest on the part of Natco Pharma to risk introducing its product in the market without pursuing its revocation application pending before the IPAB. 

The High Court referred to a conspectus of judicial precedents where legal principals in relation to orders of interim injunction were enunciated and explained. Reliance was placed on Supreme Court decisions including Wander v. Antox, 1990 (Supp) SCC 727; Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117; Tek Singh v. Shashi Verma, 2019 SCC OnLine SC 168Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai, (2006) 5 SCC 282; etc. Reliance was further placed upon Mahadeo Savlaram Shelke v. Pune Municipal Corporation, (1995) 3 SCC 33, where the Supreme Court explained that the expressions “prima facie” case, “balance of convenience”, “irreparable hardship” were not rhetorical phrases for mere incantation. 

The High Court was of the view that matters involving alleged infringement of patents constitute a separate species of litigation. A further sub-species would be those concerning pharmaceutical patents. This is because the law concerning them under the Patents Act, 1970 and other related legislation has peculiar elements that would have to be kept in view by the Court. On facts of the case, it was noted that there was no formation of an opinion by the Single Judge of the Bristol Myers having made out a prima facie case in their favour for grant of an interim injunction. Furthermore, as regards the other two elements, viz., balance of convenience and irreparable hardship, there was no mention of these, even impliedly in the impugned order. 

The Court observed: “Although, there are special features in litigation involving infringement of patents, that still would not obviate the Court dealing with the question of grant of interim injunction to record the three important elements as have been stressed in a large number of decisions of the Supreme Court. It is not necessary that the order granting or refusing interim injunction should expressly state about the above elements but a reading of the order should indicate the forming of an opinion by the Court on the said aspects”. In Court’s opinion, a reading of the impugned order did not reflect that the Single Judge had formed such an opinion on the aforementioned elements. Further: “The decision in the application of interim injunction has to necessarily indicate the view of the Court on the three elements mentioned hereinbefore and the additional features when it involves a case of alleged infringement of a patent, and in particular, a pharmaceutical patent. It is not the length of the order or its precise wording that matters. It is necessary, however, that the factors mentioned hereinbefore must be discernible from the order which comes to a conclusion one way or the other regarding the grant of an interim injunction”.  

In such view of the matter, the Court held that the impugned interim order be set aside and the application for interim injunction be decided afresh by the Single Judge. It was directed that until then, the status quo as on 5-7-2019, prior to the passing of the impugned order shall be maintained. [Natco Pharma Ltd. v. Bristol Myers Squibb Holdings Ireland Unlimited, 2019 SCC OnLine Del 9164, decided on 16-07-2019]