Neon Laboratories Ltd Vs. Medical Technologies & Ors.
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Head Note
The Code of Civil Procedure, 1908 - Order XXXIX Rule (1) , Rule (2) , The Trade Marks Act, 1999 - Section 34 , Section 47
Trade Mark - Temporary Injunction - First in the market test - Defendant-Appellant had applied for registration of its trademark several years prior to the Plaintiff-Respondents but user thereof had remained dormant for twelve years - In this interregnum, the Plaintiff-Respondents had not only applied for registration but had also commenced production and marketing of the similar drug and had allegedly built up a substantial goodwill in the market for PROFOL - Plaintiff-Respondents have alleged, and have prima facie supported with proof, that they had already been using their trademark well before the attempted user of an identical or closely similar trademark by the Defendant-Appellant -Held that the former would be entitled to a temporary injunction, in light of the 'first in the market' test as the Plaintiff-Respondents have made out a prima facie case balance of convenience and an irreparable loss, are both in favour of the Plaintiff- Respondents, given the potential loss of goodwill and business they could suffer should an injunction be denied - Defendant-Appellant has been injuncted from using the mark ROFOL since 2005, after having launched products bearing the mark only in the previous year, so the balance of convenience is in favour of allowing the injunction to continue.
The Code of Civil Procedure, 1908 - Order XXXIX Rule (1) , Rule (2)
Ad Interim Injunction - Before granting an ad interim injunction, the Court in seisen of the litigation has to address its attention to the existence or otherwise of three aspects - (a) whether a prima facie case in favour of the applicant has been established; (b) whether the balance of convenience lies in favour of the applicant; and (c) whether irreparable loss or damage will visit the applicant in the event injunctory relief is declined.
The Code of Civil Procedure, 1908 - Order XLIII Rule (1)
Interim Injunction - Appeal against Order - Appellate Court ought not to "reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material - Appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion - If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion".
The Code of Civil Procedure, 1908 - Order XLIII Rule (1)
Interim Injunction - Appeal against Order - Appellate Court should not flimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court unless such exercise is palpably perverse - Perversity can pertain to the understanding of law or the appreciation of pleadings or evidence.
Topic(s)-Trade Mark - Temporary Injunction - First in the Market Test - Injunction to continue