1991 (1) TMI 443 - HC - Companies Law

Summary

Issues Involved:
1. Prior adoption and use of the trade mark "Hidesign."
2. Allegations of passing off by the defendant.
3. Interim injunction sought by the plaintiff.
4. Defendant's claims of acquiescence and delay.
5. Compliance with procedural requirements under Order 39 Rule 3 of the Code of Civil Procedure.
6. Alleged suppression of material facts by the plaintiff.

Detailed Analysis:

1. Prior Adoption and Use of the Trade Mark "Hidesign"
The plaintiff, Mrs. Pampa Kapoor, has been engaged in the business of manufacturing and selling leather goods under the trade mark "Hidesign" since 1977. The plaintiff asserts that the trade mark "Hidesign" was adopted in a special and particular manner and has been used extensively in her business, acquiring secondary meaning and valuable goodwill. The plaintiff claims to be the prior adopter of the trade mark vis-a-vis the defendant.

2. Allegations of Passing Off by the Defendant
The plaintiff became aware in April 1980 that the defendants were manufacturing and selling similar goods under the trade mark "Hidesign." The plaintiff sought an interim injunction to restrain the defendants from passing off their goods under the offending trade mark. The court noted that the word "Hidesign" is an unusual combination and not found in English dictionaries, which makes it unique. The plaintiff contends that the defendant, Bunty Kaiker, who was previously a dealer of the plaintiff's goods, cannot continue to use the trade mark "Hidesign" after their business relationship ended.

3. Interim Injunction Sought by the Plaintiff
The plaintiff filed an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, seeking an ad interim injunction without notice to the defendants. The court initially granted the injunction on 3.8.1990, restraining the defendants from using the trade mark "Hidesign." The injunction was later continued after the defendants appeared and filed their reply.

4. Defendant's Claims of Acquiescence and Delay
The defendant argued that the plaintiff acquiesced to the use of the trade mark "Hidesign" and that there was a delay in filing the suit. The court noted that the delay was slightly under three years and distinguished the case from others where longer delays were considered acquiescence. The court held that the defendant's use of the trade mark after the end of their business relationship with the plaintiff was not in good faith and did not constitute honest concurrent use. The court found no significant expenditure by the defendant that would justify a claim of acquiescence.

5. Compliance with Procedural Requirements under Order 39 Rule 3 of the Code of Civil Procedure
The defendant contended that the plaintiff did not comply with Order 39 Rule 3, which requires service of the injunction order on the following day. The court found that the plaintiff had complied sufficiently, given the intervening holidays and the practical difficulties in effecting service.

6. Alleged Suppression of Material Facts by the Plaintiff
The defendant alleged that the plaintiff suppressed material facts, particularly the prior business dealings between the parties. The court acknowledged that the plaintiff had not made full disclosure but held that this lapse could be addressed by imposing costs on the plaintiff. The court quantified the costs at Rs. 3,000 to be paid to the defendant within one month.

Conclusion
The court rejected the defendant's application to set aside the ad interim ex parte order of injunction and confirmed the interim injunction in favor of the plaintiff. The court emphasized that the opinions expressed were prima facie and should not prejudice the final determination of the rights of the parties after the trial. The applications I.A. No. 5958 of 1990 and I.A. No. 8171 of 1990 were disposed of accordingly.