At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE S. VAIDYANATHAN
For the Petitioner: M/s. P. Giridharan Dominic S Dav, Advocate. For the Respondent: ----------
(Prayer: To vacate the order of interim injunction dated 28/02/2019 in O.A.No.34 of 2019 in C.S.No.33 of 2019.)
The Applicants, who are the Defendants in the suit have come forward with the present Application, seeking to vacate the order of interim injunction dated 28.02.2019 passed in O.A.No.34 of 2019 in C.S.No.33 of 2019.
2. When the Applications for interim injunction were listed for hearing on 20.02.2019, this Court had permitted the Respondent/Plaintiff to take notice on the Applicants/Defendants herein and the matters were directed to be listed on 28.02.2019. On the said date, despite issuance of private notice on the Defendants, none represented on behalf of the Defendants and therefore, this Court had granted an order of interim injunction against the Defendants. Aggrieved by the order of interim injunction, the Applicants/Defendants are before this Court for vacating the interim order dated 28.02.2019.
3. The foremost contention raised by Mr.P.S.Raman, learned Senior Counsel appearing for the Applicants/Defendants is that the Defendants' Trademark “Patanjali Aarogya” was registered as early as in 2016 itself and that in the light of Section 28(3) of the Trademarks Act, 1999, the suit filed by the Plaintiffs is not maintainable and is liable to be dismissed. He has further contended that pursuant to the interim order, the Applicants/Defendants incurred huge loss and therefore, the said order may be kept in abeyance for a limited period so as to enable them to file a reply and to contest the matter effectively.
4. In reply, learned counsel for the Respondent/Plaintiff has submitted that there is no reason forthcoming on the side of the Applicants/Defendants for the delay in approaching the Court and this Court, on due satisfaction of the averments made in the Applications for interim injunction and the Plaint, had granted the interim order. He has further submitted that when the Applicants/Defendants had filed an application for registration of the Trademark “Patanjali Arogya”, the Plaintiff had made several objections to it. But, however, the Applicants/Defendants had somehow managed to obtain the registration of Trademark “Patanjali Aarogya” in the year 2016 irrespective of the fact that the Trademark of the Plaintiff was registered in the year 1995 itself. He has also pointed out that by deceptively adopting the Trademark of the Respondent/Plaintiff, a wrong impression is sown in the minds of the public at large that the products of the Respondent/Plaintiff have been taken over by the Applicants / Defendants, even though they are two different entities as on date.
5. Heard the learned counsel on either side and perused the material documents available on record.
6. It is the strong case of the Applicants/Defendants that when the registered ownership of the Trademark of the Defendants is duly established, the Respondent/Plaintiff cannot proceed against them for the relief of infringement, as the 2nd Respondent/Defendant had registered the mark “Patanjali Aarogya” vide Trademark Registration No.3376040 dated 30.09.2016 under Clause 30. In support of his submission, learned Senior Counsel for the Applicants/Defendants has cited the provisions of Section 28(3) of the Trade Marks Act, 199, which stipulates as under:
“28. Rights conferred by registration:-
(3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble each other the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration of the trade marks but each of those persons has otherwise the same rights as against other persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor.”
7. When this Court posed a question at the nascent stage regarding the possibility of changing the wrapper of “Patanjali Aarogya” by portraying the word 'Patanjali' in a larger font and showing the word 'Aarogya' with lesser visibility, by the Applicants/Defendants, learned Senior Counsel for the Applicants/Defendants has stated that it is not easy to change the wrappers overnight, as it will take months together to achieve the object. It would have been different, if this Court orders for such revision of wrapper after adjudication.
8. Coming to the crux of the matter, it is an admitted fact that the Applicants/Defendants had duly registered their Trademark “Patanjali Aarogya” in the year 2016, which was much later to the registration of the Plaintiff's Trademark “Arokya” in 1995. In totality, finding prima facie case and balance of convenience in favour of the Applicants/Defendants in the light of Section 28(3) of the Trade Marks Act, 1999 (extract
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ed supra), I find justification in the contention raised by the learned Senior Counsel for the Applicants/Defendants and the interim relief granted by this Court in favour of the Respondent/Plaintiff is liable to be kept in abeyance for a period of two weeks without rendering any opinion on the merits of the suit. 9. Accordingly, the interim injunction granted by this Court in O.A.Nos.33 and 34 of 2019 on 28.02.2019 is ordered to be kept in abeyance for a period of two weeks from today. List these matters on 03.04.2019 for hearing.