2012 (3) TMI 705 - HC - Indian Laws

Summary

Issues Involved:
1. Compliance with Order XXXIX, Rule 3 CPC.
2. Use of green color label by the plaintiff.
3. Discrepancy in sales figures.
4. Difference between trademarks "MADHU" and "MADHU BAHAR".
5. Defendant's license for the trademark.

Summary:

1. Compliance with Order XXXIX, Rule 3 CPC:
The defendant argued that the plaintiff failed to comply with Order XXXIX, Rule 3 CPC, which mandates delivering or sending by registered post a copy of the application for injunction, affidavit, plaint, and documents relied upon immediately after the ex parte order. The plaintiff's counsel admitted partial compliance, acknowledging that the complete set of documents was not sent. The court emphasized the mandatory nature of this provision, citing precedents like *Shiv Kumar Chadha v. Municipal Corporation of Delhi* and *M/s. Marbal Udyog Ltd. Vs. M/s. P & O Indian Agencies (P) Ltd.*, which held that non-compliance necessitates vacating the ex parte order. Consequently, the interim order dated 06.02.2012 was suspended due to the plaintiff's failure to comply fully with Order XXXIX, Rule 3 CPC.

2. Use of Green Color Label by the Plaintiff:
The defendant contended that the plaintiff never used the green color label filed in court and did so only to obtain an ex parte order. The plaintiff's counsel undertook to produce relevant records to prove the use of the green color label but failed to provide justification for discrepancies in sales figures.

3. Discrepancy in Sales Figures:
The defendant pointed out inconsistencies between the sales figures presented in court and those filed in the Trade Mark Office. The plaintiff's counsel could not justify these discrepancies, further weakening the plaintiff's position.

4. Difference Between Trademarks "MADHU" and "MADHU BAHAR":
The defendant argued that "MADHU" and "MADHU BAHAR" are different trademarks, and the plaintiff only had registration as a label mark, not for the word per se. Therefore, there was no infringement u/s 17 of the Trade Marks Act, 1999.

5. Defendant's License for the Trademark:
The defendant claimed to hold a license for the trademark through United Traders, challenging the maintainability of the suit for infringement.

Conclusion:
The court vacated the ex parte interim injunction due to non-compliance with Order XXXIX, Rule 3 CPC and dismissed the interim application I.A. No. 2222/2012. Consequently, I.A. No. 2846/2012 was also disposed of. The suit was renotified for further consideration on 24.05.2012.