LIST
OF DATES/SYNOPSIS
That in the
year 1984, another Company M/S La Pharmaceuticals, Ahmedabad having its valid
Trade Mark Registration no.1272313 qua trade mark ‘NORTIN’ and has
registered proprietorship. Subsequently in the year 1995 the Trade Mark of
respondent Company M/S. Arbro Pharmaceuticals Ltd. ‘NORKIN’ has have
been in opposition by, M/S La
Pharmaceuticals, Ahmedabad with Trade Mark ‘NORTIN’, since filing of the same
in Trade Mark Registry in the year 1995. Deposed by PW2. This Question of Fact
admitted by respondent.
Manufacturing license issued
under the provisions of the Drugs and
Cosmetics Act, 1940, by the office of the Drugs Controller, Delhi
Administration, in the name of respondent for the manufacturing of the
pharmaceutical preparation ‘NORKIN’ is dated 13/11/1997.Respondent filed
Trade Mark Application No.867463 in class 5 under Section-71 of The Trade Marks Act, 1999; dated 22.07.1999;
in respect of Trade Mark ‘NORKIN PLUS’; status of the said application
is abandoned as per computer
data record as per Section-21 clause (2) if within two months a counter
statement of the grounds on which he relies for his application, and if he does
not do so he shall be deemed to have abandoned his application. Deposed by PW4[Assistant
Examiner, Office of the Registrar of Trade Marks, Dwarka, New Delhi].
The
Respondent admitted that the name of ‘NORKIN’ and ‘NORTIN’ is same as well as
this that the suit is for their product ‘NORKIN PLUS’ and sale figures is of
‘NORKIN’ instead of ‘NORKIN PLUS’ as evident from perusal of PW2[Director in
Plaintiff Company since 05.12.1998] statement.
That
in the third week of September as alleged by respondent; it came to know that
appellant has launched a pharmaceutical product bearing Trade Mark ‘NORKEN
PLUS’; without any bill/cash memo. Respondent also admitted that in
generic, the medicine is formed in the name of the medicine salt itself &
that name of the drug is identified by its chemical name rather than its brand
name; as well as that in NORKIN first three alphabets[NOR] and last two
alphabets[IN] are arising from the salt in the product of the respondent; as
evident from perusal of PW2 statement. On 21.9.2005; ‘suit for permanent
injunction restraining infringement of copyright, passing off, rendition of
Accounts, etc’ was instituted in the Court of Ms. Anju Bajaj Chandna,
Additional District Judge-01 (Central) Tis Hazari Courts, Delhi.
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Wherein the
Learned ADJ. Ms. Anju Bajaj Chandna in suit No. TM-119/2011(old no. 263 of
2005) dated 05.08.2014 held-:
I do not find
much differences in the design and essential features of the cartoon and, in my
opinion, the defendant has adopted/copied the artistic packaging work of the
plaintiff company, which amounts to infringement of copyright created by the
plaintiff’s company. The defendant is, therefore, restrained from using the
artistic packaging work of the plaintiff company with respect to pharmaceutical
preparation ‘NORKEN PLUS’.
I
found that they are deceptively similar and the plaintiff company, being prior
user of the same, its right to use the same is to prevail upon.
The assertion of the
defendant that Trade Mark ‘NORKEN’ is a public juris and has been derived from Norfloxacin,
carries no merit or substance. Although, first three letters ‘NOR’ are being
derived from the chemical name but the rest three letters ‘KIN’ or ‘KEN’ cannot
be said to be derived from the chemical name. I find no justification to hold
that Trade Mark ‘NORKEN’ is public juris and, therefore, anyone is entitled to
use this chemical name. Trade Mark ‘NORKIN PLUS’ created and used by the
plaintiff cannot be said to be public juris so as to entitle the defendant to
use the same.
Defendant has adopted not only the Trade Mark but also artistic
packaging work of the plaintiff with respect to the medicine ‘NORKIN PLUS’.
Defendant company having passed off its goods under the Trade Mark and artistic
packaging of the plaintiff, is liable to render the accounts in respect of its
sales. In my opinion, an amount of Rs. 2.5 Lakhs would be sufficient to
compensate the plaintiff for passing off its goods under the Trade Mark of
plaintiff.
Defendant is not entitled to use the Trade Mark ‘NORKEN PLUS’. Plaintiff
is permitted to destroy, as per report of Local Commissioner appointed vide
order dated 22.09.2005, the infringed material already in custody.
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The
respondent, after reiterating its averments in the affidavit of evidence filed
by their director PW2, admitted, inter alia, the following in his cross
examination:
i.
‘….I am having full knowledge of
the working of the company and the products being sold by the company in the
market….’
ii.
‘….The product of the defendant
was got procured by the exporters from
Afghanistan…’
iii.
‘….It is correct that I have not
disclosed the fact regarding the purchase of the product of the defendant by
the exporters from Afghanistan without any bill….’
iv.
‘…. It is correct to suggest that
the trade mark of the plaintiff NORKIN is in opposition since filing of the
same in Trade Mark Registry in the year 1995….’
v.
‘….It is corrects to suggest that
the plaintiff has filed a suit of its product NORKIN PLUS. It is also correct
that in our plaint we have given the sale figures of NORKIN and not NORKIN
PLUS. It is correct that in affidavit, our mark is mentioned as NORKIN and not
as NORKIN PLUS.
vi.
‘….I have been shown Ex.PW2/5 and
Ex.PW2/118 and there is no similarity between the girls shown on the product….’
vii.
‘….It is correct that the price of
the product is written on the cartoon of the plaintiff but there is no price
written on the carton of the defendant….’
viii. ‘….It is
correct that both the products come under the category of Schedule H drug as
per Drug and Cosmetic Act….’
ix.
‘….It is correct that the product
marked as Schedule H can only
be sold by the Chemist on the doctor’s
prescription….’
x.
‘….It is correct to suggest that I
am aware of the fact that the company which has opposed us in Trade Mark Registry is having a valid trade mark
registration since 1984 in the name of NORTIN in class 5 pharmaceuticals
in the name of M/S La Pharmaceuticals, Ahmedabad having its registration
no.1272313….’
xi.
‘….It is incorrect to suggest that
the name of NORKIN and NORTIN is not the same….’
xii.
‘….In generic, the medicine is
formed in the name of the medicine salt itself. It is correct that the name of
the drug is identified by its chemical name rather than its brand name. It is
correct([in NORKIN]) first three alphabets[NOR] and last two alphabets[IN] are
arising from the salt in the product of the plaintiff....’
That Para 15
of Suit filed on 21.09.2005 in the Court of Learned ADJ. Ms. Anju Bajaj Chandna
states Drugs are poisons, not sweets. Confusion between medicinal products may
therefore, be life threatening, not merely inconvenient; frivolous and
vexatious as NORKIN PLUS & NORKEN PLUS both are for antidiarrhoeal
Suspension and manufactured utilizing the same ratio of chemical compound.
That
Para 12 of Evidence by way of Affidavit filed on 23/July/2009 by plaintiff in
the Court of Learned ADJ. Ms. Anju Bajaj Chandna states sales from the year of
2000 to 19/01/2007 neither from 1995 or 1999 and of NORKIN instead of NORKIN
PLUS for which suit has had been filed & Para 22 of the same states
indirectly and admits directly existence of minor distinction in the two
labels. So, distinction whether minor or major can never be equated to
deceptiveness, similarity or deceptive similarity respectively; “as anonym”; “not synonym”; meaning thereby if there exist minor distinction
then it is incorrect to conclude existence of deceptiveness[confined ambit] in
case of passing off when unregistered and incorrect to conclude existence of
similarity[wide ambit] in case of infringement when registered Trade Mark as
well as incorrect to conclude existence of deceptive similarity[infinite ambit]
when being registered trade mark claiming infringement and passing off both at
once instant. As, in case of Passing off when unregistered Trade Mark, test is
of deceptiveness u/s 27 clause (2) since no exclusive right u/s 28 of Trade
Marks Act, 1999 and in case of infringement when registered Trade Mark test is
of similarity u/s 27 clause (1) of Trade Marks Act, 1999 since exclusive right
u/s 28 of Trade Marks Act, 1999. Test of both deceptive-similarity operates
when being registered Trade Mark claiming infringement and passing off both at
once instant.
That in Reply on Merits in
Replication by Plaintiff to written statement filed by the defendant dated
19/March/2007 Para 4 states that ‘….It is submitted that the plaintiff has no
objection to the manufacture and marketing of any pharmaceutical product by the
defendant containing the medicine Norfloxacin, if the same is manufactured and
marked in a different name and packaging to that of the plaintiff.
That Para 18 of
Evidence by way of Affidavit filed on 23/July/2009 by plaintiff in the Court of
Learned ADJ. Ms. Anju Bajaj Chandna; Plaintiff came to know in the last week of
February 2007 that Defendant adopted another deceptively similar trade mark
being ‘NELKIN PLUS’. Thereafter Plaintiff has filed Civil Suit in the Hon’ble
High Court and on 02.03.2007 the Hon’ble High Court had granted ex-parte
injunction in favour of plaintiff and against the Defendant from manufacturing,
selling and advertising the impugned trade mark ‘NELKIN PLUS’ & Para 18 of
the same states A bad copy does not cease to be a copy; though cautious but
incidentally & mistakenly implicated the principal against themselves as
application for getting ‘NORKIN’ as a Trade Mark has been in objection &
opposition since filing; as ‘NORTIN’ registered proprietor is in existence
since 1984, in qua Trade Mark application for ‘NORKIN PLUS’ filing date 22.07.1999;
status of the said application is abandoned
as per computer data record.
Year 1984: That
another Company M/S La Pharmaceuticals, Ahmedabad having its valid Trade Mark
Registration no.1272313 qua trade mark ‘NORTIN’ and has registered
proprietorship.
Year 1995 That
the Trade Mark of respondent Company M/S. Arbro Pharmaceuticals Ltd.
‘NORKIN’ has have been in opposition
by, M/S La Pharmaceuticals, Ahmedabad with Trade Mark ‘NORTIN’, since filing of
the same in Trade Mark Registry in the year 1995.
13.11.1997: That
Manufacturing license issued under the provisions of the Drugs and Cosmetics Act, 1940, by the office of the Drugs
Controller, Delhi Administration, in the name of respondent for the
manufacturing of the pharmaceutical preparation ‘NORKIN’ is dated 13/11/1997.
22.07.1999: That
Respondent filed Trade Mark Application No.867463 in class 5 under Section-71 of The Trade Marks Act, 1999;
dated 22.07.1999; in respect of Trade Mark ‘NORKIN PLUS’; status
of the said application is abandoned
as per computer data record as per Section-21 clause (2) if within two months a
counter statement of the grounds on which he relies for his application, and if
he does not do so he shall be deemed to have abandoned his application.
05.12.1998: That
PW2: Director in Plaintiff Company since 05.12.1998.
21.9.2005: That ‘suit for permanent injunction
restraining infringement of copyright,
passing off, rendition of Accounts, etc’ was instituted in the Court of Ms.
Anju Bajaj Chandna, Additional District Judge-01 (Central) Tis Hazari Courts,
Delhi.
19.03.2007:
Reply on Merits in Replication by Plaintiff to
written
statement filed by the defendant dated
19/March/2007.
February, 2007:
Plaintiff came to know in the last week of
February 2007 that
Defendant adopted
another deceptively
similar trade mark being
‘NELKIN
PLUS’. Thereafter Plaintiff has filed
Civil Suit
in the Hon’ble High Court and on
02.03.2007
the Hon’ble High Court had
granted
ex-parte injunction in favour of
plaintiff
and against the Defendant from
manufacturing,
selling and advertising the
impugned
trade mark ‘NELKIN PLUS’
23.07.2009: Evidence
by way of Affidavit filed on 23/July/2009 by plaintiff in the Court of Learned
ADJ. Ms. Anju Bajaj Chandna.
05.08.2014: Judgement
pronouncement of the Learned ADJ. Ms. Anju Bajaj Chandna in suit No. TM-119/2011(old no. 263
of 2005) dated 05.08.2014.
Year 2000 to 19.01.2007: Sales
from the year of 2000 to 19/01/2007 neither from 1995 or 1999 and of NORKIN
instead of NORKIN PLUS for which suit has had been filed.
17.10.2014: Order passed by Hon’ble High Court, “I do not
find any ground to stay the operation of impugned decree which restrained from
manufacturing, selling, offering for sale, stocking, advertising, directly or
indirectly dealing in pharmaceutical preparation under the impugned trade
mark/artistic work ‘NORKEN PLUS’ during the pendency of appeal.
.12.2014:
Hence
the present Special Leave Petition.
To
The
Hon’ble Chief Justice of India
and thy
Companion Judges of the
Supreme
Court of India.
The
Special Leave Petition of
the
above-named Petitioner.
MOST RESPECTFULLY SHOWETH:-
1. That the
petitioner is seeking the Special Leave to appeal before this Hon’ble Court
against the impugned judgment and qushi-final order dated 17.10.2014 passed by
the Hon’ble High Court of Delhi at New Delhi in RFA No.510/2014 on CM Appl.
No. 17263/2014; whereby the Hon’ble court was pleased to dismiss the CM Appl.
No.17263/2014 for stay of impugned decree; a replica of having serious civil
consequences connected with the appeal; under Order 41, Rule 5 of CPC in
limine.
2. QUESTION OF LAW:-
Following
questions of law arise for consideration by this Hon’ble Court.
A. Whether common law right of passing off gets
forfeited in toto if application for Trade Mark registry is opposed and
abandoned?
B. Whether, cause of action for locus standi to claim
under section-27 clause (2)-
I.
doeth not get evolves for second Trade Mark claimant against not opposed or objected third
Trade Mark claimant Trade Mark by and if there is first or prior or pre-first or pre-prior
registered proprietor and second Trade Mark claimant’s Trade Mark is objected
and opposed?; but
II.
evolves, when first or prior or pre-prior or pre-first
registered proprietor of Trade Mark claim right of infringement and passing off
against second Trade Mark claimant and third Trade Mark claimant?; and also
III. evolves to third Trade Mark
claimant against, objected and opposed
Trade Mark of second Trade Mark claimant by and do while if third Trade Mark
claimant is not objected or opposed by first or prior or pre-prior or pre-first
registered proprietor of Trade Mark?; exceptionally
IV. evolves, do while if objection and
opposition by first or prior Trade Mark registered proprietor is; against and,
pursued by; second or third Trade Mark claimant not abandoned as per
Section-21 clause (2) if within two months a counter statement of the grounds
on which he relies for his application, and if he does not do so he shall be
deemed to have abandoned his application then it evolves to claimant
pursuing same to claim for the unfettered right of passing off?; and
(i). claimant whose application is abandoned his claim for the right of
passing off gets fettered, curtailed and diminished tending to vanishing and
disappearance; in comparison to unfettered right of passing off of claimant
pursuing not abandoned, as well as claimant whose Trade Mark is not objected
and opposed?
2A. SUBSTANTIAL QUESTION OF LAW:-
Following
substantial questions of law arise for consideration by this Hon’ble Court.
A. Whether as per rules and law of
phonetic ‘NORKEN’ will be pronounced as ‘NORKIN’?
B. Whether Respondent has earned
good will with good intention not being from deceit and mala fide by deceiving
and encashing profits and goodwill earned by pre-first the registered
proprietor since 1984?
C. Whether Respondent has not come
up with clean hands?
D. Whether damages of Rs. 2.5 Lakhs
is prohibited by Sec-102, 103 & 104 of Trade Marks Act which limit the fine
cannot be more than Rs. 2 Lakhs?
E. Whether in case of fettered,
curtailed and diminished tending to vanishing and disappearance of right of
passing off in facts and circumstances wherein application for Trade Mark
registration is objected and opposed and is abandoned; in the ambit of residue
of burned right of passing off goodwill earned on such Trade Mark must be as
prima facie obvious earned goodwill with, good intention or will, is
protectable; not the earned goodwill with mala fide will or intention herein by
not pursuing objection and opposition on application of registered Trade Mark;
and abandoned later as per Section-21 clause (2) if
within two months from receipt of copy of the notice of opposition, a counter
statement of the grounds on which he relies for his application, and if he does
not do so he shall be deemed to have abandoned his application his goodwill earned on Trade
Mark is earned with mala fide intention or will and without knowledge of opposing
and objecting registered proprietor pre-prior or prior or pre-first or first
exist since 1984?
3. DECLARATION IN TERMS OF RULE 4 (2):
The
petitioner states that no other petition seeking leave to appeal has been filed
by them against the impugned judgment and order.
4. DECLARATION IN TERMS OF RULE 6:-
The
Annexures P-1 to P-5 produced alongwith the S.L.P. are true copies of the
pleadings/documents, which formed part of the record of the case in the Courts
below against whose order the leave to appeal is sought for in this petition.
5. G R O U N D S:
Leave to
appeal is sought for on the following grounds:
A. Because phonetically not even by
error ‘NORKEN’ pronounced as /norkaen can be pronounced as /norkeen since no
vowel before or after I in ‘NORKIN’ which will be spelled as ‘NORKIN’; while
keeping in mind it’s noun i.e pronunciation of Archie’s, Archive, Kingship,
Lord Atkin. And tenet as /tenit is a case different as twice 'e' and NORKEN the difference between K-N is less as to
between n-t.
B. Because ‘NORKEN’ contains public
juris alphabet NOR from chemical name NORFLOXACIN, K as potassium chemical name
and EN last two alphabet from the last two alphabet at the end of the company
name MAIDEN[Appellant company name M/S MAIDEN PHARMACEUTICAL Ltd.].
C. Because I in ‘NORKIN’ and E in
‘NORKEN’ are at address with three[3] alphabet occurring in between A B C D
E F
G H I.
D. Because, structurally also the architecture of
I and E can easily be distinguished as design being different. It is pertinent
to mention here that only 26 alphabets exist plus the International
Non-Proprietary name issued by WHO, chemical name in periodic table of
chemistry within these limit by articulation of alphabet Trade Mark are coined
and conceived.
E. Because in the light of Sec-28
clause (3) of Trade Marks Act, 1999 it can be seen where & when two or more
persons are having unregistered Trade Mark, assuming arguendo, Trade Mark which
are identical with or nearly resemble each other, the exclusive right to the
use of any of those Trade Marks shall not be deemed to have been acquired by
any one of those person as against any other of those persons merely by
goodwill earned of the Trade Marks but each of those person has otherwise the
same rights as against other persons as he would have if he were the sole
registered proprietor. Especially when second Trade Mark claimant claim for
passing off against third Trade Mark on ground of first or prior use, of
unregistered Trade Mark, and where application for registration of such Trade Mark u/s 72 of Trade Marks Act,
1999 has been in objection and opposition since its filing by first or prior registered
proprietor; and status of the application is abandoned too then second Trade
Mark claimant common law (tort) right of passing off not municipal law gets
fettered, curtailed and diminished tending to vanishing and disappearance; in
comparison to unfettered right of passing off of first or prior or pre-first or
pre-prior registered proprietor, or, third Trade Mark claimant Trade Mark not
objected or opposed.
Thence,
cause of action for locus standi to claim-
I. doeth not get evolves for second
Trade Mark claimant against not opposed or objected third Trade Mark claimant
Trade Mark by and if there is first or
prior or pre-first or pre-prior registered proprietor and second Trade Mark
claimant’s Trade Mark is objected and opposed?; but
II. evolves, when first or prior or
pre-prior or pre-first registered proprietor of Trade Mark claim right of
infringement and passing off against second Trade Mark claimant and third Trade
Mark claimant?; and also
III. evolves to third Trade Mark
claimant against, objected and opposed
Trade Mark of second Trade Mark claimant by and do while if third Trade Mark
claimant is not objected or opposed by first or prior or pre-prior or pre-first
registered proprietor of Trade Mark?; exceptionally
IV. evolves, do while if objection
and opposition by first or prior Trade Mark registered proprietor is; against
and, pursued by; second or third Trade Mark claimant not abandoned as per
Section-21 clause (2) if within two months a counter statement of the grounds
on which he relies for his application, and if he does not do so he shall be
deemed to have abandoned his application then it evolves to claimant
pursuing same to claim for the unfettered right of passing off?; and
(i). claimant whose application is abandoned his claim for the right of
passing off gets fettered, curtailed and diminished tending to vanishing and
disappearance; in comparison to unfettered right of passing off of claimant
pursuing not abandoned, as well as claimant whose Trade Mark is not objected
and opposed?
F.
Because even in honest concurrent use registration of
Trade Mark by more than one proprietor may be permitted when such Trade Marks
are identical or similar in respect of the same or similar goods or service,
subject to condition and limitation if any may be imposed by Registrar under
Section-12 of Trade Marks Act, 1999. In the light of the said provision it is
visible that herein the case respondent abandoned the Trade Mark registration
application opposed and objected is not an honest concurrent user therefore
earned goodwill on Trade Mark is by ill-will which has to be with good
intention without any deceit. Thence Appellant being honest concurrent user
with goodwill earned with good intention and without ill-will and deceit shall
be allowed in manufacturing, selling, offering
for sale, stocking, advertising, directly or indirectly dealing in
pharmaceutical preparation under the trade mark/artistic work ‘NORKEN PLUS’; by
setting aside the impugned judgment and decree appeal against.
C. Because the fair competition
advertisement or artistic work on cartoon against each other is permissible but
restricted to degrading another product.
Therefore assuming for the sake of argument even if artistic work on
cartoon are not distinctive to distinguish then also by way of fair competition
minor similarity can be ignored.
D. Because for passing off there
must sale herein the case no evidence to prove sale. No bill/cash memo issued
by Appellant for sale is on record.
E.
Because NORFLOXACIN is a chemical name because of
which it is public juris. The first three alphabet[NOR] and last two alphabets
[IN] in Trade Mark ‘NORKIN’ are explicit
in public juris chemical name NORFLOXACIN; hence after five alphabets one
alphabet [K] is left which is also in periodic table of chemistry which stands
for potassium[K] so this too is public juris; making the whole Trade Mark name
‘NORKIN’ as public juris.
As well as ‘NORKIN’ unregistered Trade Mark was in objection and
opposition by registered proprietor of Trade Mark ‘NORTIN’ since 1984 resulting
in conclusion that ‘NORKIN’ Trade Mark of Respondent is not distinct, unique
and unobvious and so no novelty in that creativity can be assessed to contend.
It is pertinent to mention here that already there exist
1. ‘NORKIN’ digital network
2. NORTIN pharmaceutical services and goods.
3. NORAXIN pharmaceutical services and goods.
4. NORFEN pharmaceutical services and goods.
5. NORFIX pharmaceutical services and goods.
6. NORTON Antivirus
As per the respondent, after reiterating
its averments in the affidavit of evidence filed by their director PW2,
admitted, inter alia, the following in his cross examination
i.
‘….It is correct that both the
products come under the category of Schedule H drug as per Drug and Cosmetic
Act….’
ii.
‘….It is correct that the product
marked as Schedule H can only
be sold by the Chemist on the doctor’s
prescription….’
iii.
‘….It is correct to suggest that I am
aware of the fact that the company which has opposed us in Trade Mark Registry is having a valid trade mark
registration since 1984 in the name of NORTIN in class 5 pharmaceuticals
in the name of M/S La Pharmaceuticals, Ahmedabad having its registration
no.1272313….’
iv.
‘….It is incorrect to suggest that
the name of NORKIN and NORTIN is not the same….’
v.
‘….In generic, the medicine is
formed in the name of the medicine salt itself. It is correct that the name of
the drug is identified by its chemical name rather than its brand name. It is
correct([in NORKIN]) first three alphabets[NOR] and last two alphabets[IN] are
arising from the salt in the product of the plaintiff....’
Meaning there by ‘NORKIN’ and ‘NORKEN’ being Schedule H drug are only
sold by chemist when prescribed by doctor; so it’s done cautiously. Wherein
doctor prescribing Schedule H drug is highly cautious and applies medical mind
more reliable then prudent man.
And also that the name of the drug is
identified by its chemical name rather than its brand name; which is public
juris; so there is no confusion neither in mind of doctor nor in the mind of
chemist regarding mistakenly prescribing and delivering another product due to
confusion as by chemical name[public
juris] the said is done and herein both the Trade Mark have the same drug name
and chemical name[keeping in mind these being public juris] and minor
distinction as already admitted by Respondent is major distinction in the eye
of medical mind[doctor] as chemistry is more cautious being complex than
English which is less complex. Thereby even assuming hypothetical circumstances
where ‘NORKEN’ is used in place of ‘NORKIN’ then too the cure for which it is
passed will get achieved; no life threatening injury or public interest
involved as ‘NORKIN PLUS’ & ‘NORKEN PLUS’ both are Schedule H drug and
person involved in this is not public which is prudent man but medical mind. So
stepping in the shoes of medical mind and then seeing it will be a rational
test.
F.
Because Respondent claims for passing off of good or
services under Trade Mark name ‘NORKIN PLUS’ oblivious of that fraudulently
lead evidence for sale of ‘NORKIN’ in place of ‘NORKIN PLUS’. No, sale of
‘NORKIN PLUS’ is on evidence likelihood is that the use of ‘NORKIN PLUS’ is
abandoned beyond three years his even registered proprietorship gets forfeited;
as Trade Mark registered is valid for ten[10] years only, after that again it
has to be registered.
G. Because Sec-135 clause (c) &
Sec-114 of Trade Marks Act, 1999 explicitly save appellant from passing off as
even though it cannot be justified that they did passing off; assuming for the
sake of argument here passing off committed without knowledge as was unaware
and has no reasonable ground for believing that the Trade Mark of respondent is
in use and appellant exercised all due diligence to prevent the commission of
such offence.
H. Because damage of Rs. 2.5 Lakh
being more than Rs. 2 Lakh is barred by Sec-102, 103, & 104 of Trade Mark
Act and thereby making the damage impugned.
I.
Because fair competition in order to claim their
product more-good and tease the advertisement of Respondent artistic design on
the cartoon of the NORKIN PLUS is permissible but subject to defamation cannot
say that their product is bad, under copyright law or copyright rights on trade
mark.
J.
Because idea
itself is not protectable instea expression of idea is protectable i.e two
movies on same idea that is Bhagat Singh revolution, under patent law.
6. GROUNDS FOR INTERIM RELIEF:
a) That the
petitioner has been advised to state that he has prima facie good case in his
favour and balance of convenience also lies in his favour.
b) That if
the stay as prayed for is not granted, the petitioner will suffer irreparable
loss and injury, which cannot be compensated in terms of money as impugned
order on stay have serious civil consequences connected with the appeal.
7. MAIN PRAYER:-
It is
therefore, most respectfully, prayed that this Hon’ble Court may be pleased to:
(a)
grant Special Leave to Appeal on merits against the
impugned judgment and qushi-final order[as inclination of dismissal of appeal
and affirming the judgment and decree passed by Ld.District ADJ, Tis Hazari,
Delhi is apparent from face dismissal of Stay order] dated 17.10.2014 passed by the Hon’ble High Court
of Delhi in RFA No.510/2014 on CM Appl. No. 17263/2014, keeping in mind
Art-136 Constitutional Remedy and in Mool Chand Yadav v. Raza Buland Sugar
Company Ltd. (1982) 3 SCC 484 held during pendency of appeal any order having
serious civil consequences connected with the appeal must be stayed. High Court
can decide on substantial question of law but power regarding deciding on
question of law is explicit to Hon’ble Supreme Court. Herein deciding question
of law is non obstante as impugned dismissal of Stay order is based on premises
of raised question of law and is replica of having serious civil consequences.
Question of law is on when common law right of passing off gets forfeited,
fettered and unfettered being this equity can be pressed into reanalysing
inherent power, power, highest [Hon’ble] Court of the land, Constitutional
provision Art-136, principal of proportionality, effectiveness, equivalence
& irreparable civil injury caused to Appellant.
