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2008 DIGILAW 1996 (ALL)

T. CHAND BIDI COMPANY v. AMEER HASAN

2008-09-19

TARUN AGARWALA

body2008
JUDGMENT Hon’ble Tarun Agarwala, J.—The plaintiff/respondent filed a suit under Section 29 read with Section 134 of the Trade Marks Act, 1999 praying that a decree be granted declaring that the defendants/petitioners are not entitled to use the trade mark which is deceptively similar to the trade mark of the plaintiff and, that a decree for a permanent injunction be issued restraining the defendant from using the trade mark No. 154, which was deceptively similar to that of the plaintiff in the trade of bidis. 2. Along with the suit, an application under Order 39 Rule 1 of the Code of Civil Procedure (in short, CPC) was filed. The Court below, after considering the matter, allowed the application for grant of a temporary injunction and issued an order dated 3rd September, 2008 restraining the defendants from using the deceptively similar trade mark as that of the plaintiff during the pendency of the suit. The defendants, being aggrieved by the grant of temporary injunction, has filed the present writ petition under Article 226 of the Constitution of India. 3. Heard Shri R.B. Singhal, the learned Counsel for the defendants/petitioners and Shri Arun Kumar Singh, the learned Counsel appearing for the plaintiff/respondent. 4. A preliminary objection was raised with regard to the maintainability of the writ petition and, in this regard, the learned Counsel for the petitioners submitted that the provisions of CPC vis-a-vis Order 43 Rule 1 of the CPC is not applicable since the injunction has been granted under Section 155 of the Trade Marks Act, against which no appeal lies and, consequently, the writ petition under Article 226 of the Constitution was the only forum which the petitioners could avail. 5. Having heard the learned Counsel for the parties, this Court is of the opinion that the writ petition is not maintainable. An action for infringement of the trade mark has to be instituted by way of a suit as provided under Section 134 of the Trade Marks Act. Section 135 of the Trade Marks Act provides that a relief of injunction can also be granted. A perusal of Section 134 of the Act indicates that the suit has to be instituted in a Court not inferior to the district Court having jurisdiction to try the suit. The suit has to be instituted in a district Court. Section 135 of the Trade Marks Act provides that a relief of injunction can also be granted. A perusal of Section 134 of the Act indicates that the suit has to be instituted in a Court not inferior to the district Court having jurisdiction to try the suit. The suit has to be instituted in a district Court. The word ‘suit1 or ‘district Court has not been defined under the Trade Marks Act, but has the meaning assigned to it under the CPC since the suit is to be instituted in the district Court. Once a suit is filed before the district Court, the jurisdiction of the Court for the purpose of infringement is governed by the provisions of the CPC. The procedure to be followed in conducting a suit for infringement is not laid down under the Trade Marks Act or its Rules framed thereunder. The procedure is to be governed by the relevant provisions of the CPC. Sections 134 and 135 of the Trade Marks Act indicates the forum for appropriate relief in case of infringement, etc. Once a suit is filed, Order 39 Rules 1 and 2 of the CPC comes into play. The impugned order is an order of injunction granted under Order 39 Rules 1 and 2 of the CPC, against which, an appeal lies under Order 43 Rule 1 (r) of the CPC. 6. In view of the aforesaid, the petitioners has a remedy of filing an appeal against the impugned order. The writ petition is not maintainable and is dismissed summarily. ————