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Issues Involved:
1. Concealment and/or suppression of material facts. 2. Establishment of the ingredients of a passing off action. Detailed Analysis: Issue 1: Concealment and/or Suppression of Material Facts The court examined whether the plaintiff had concealed or suppressed material facts. It was noted that the plaintiff had averred in the plaint that the defendant was not the proprietor of the trademark 'MICO' and had adopted the same without the plaintiff's leave and license. This created an impression that while the plaintiff was the registered proprietor of the trademark 'MICO' under class 4 (including lubricants), the defendant had no such registration. However, it was revealed that the defendant No. 2 also had a trademark registration for 'MICO' in class 4, which includes lubricants, applied for on 06.01.2004 and allowed on 17.10.2005. This fact was not disclosed by the plaintiff, leading to the ex parte ad interim injunction granted on 09.10.2007. The court concluded that the plaintiff had not only failed to disclose material facts but also intentionally withheld information, which disentitled the plaintiff from seeking equitable relief. Issue 2: Establishment of the Ingredients of a Passing Off Action The court then examined whether the plaintiff had established the necessary ingredients of a passing off action, which include misrepresentation, made by a trader in the course of trade, to prospective customers, calculated to injure the business or goodwill of another trader, causing actual damage. The court found that there was no misrepresentation by the defendant No. 2 to any prospective customers, nor was there any evidence that the defendant's actions were calculated to injure the plaintiff's business or goodwill. The court noted that the defendant No. 2 had been using the mark 'MICO' for various automotive parts worldwide and was a well-known brand. The plaintiff, on the other hand, failed to provide evidence of its market presence or any material indicating that consumers were being misled into believing that the defendant's goods were those of the plaintiff. Consequently, the court concluded that the plaintiff had not established a prima facie case for passing off. Conclusion: The court held that the plaintiff was not entitled to the confirmation of the injunction order passed on 09.10.2007. The defendants, particularly defendant No. 2, had made out a case for the vacation of the said order. The plaintiff's application under Order 39 Rules 1 and 2 of CPC (IA No. 11702/2007) was dismissed, and the defendant No. 2's application under Order 39 Rule 4, CPC (IA No. 12433/2007) was allowed, vacating the order dated 09.10.2007.
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