Borosil Glass Works v/s 0.P. Batra
- Kanishka
- Judgment Analysis
Name of this Case -Borosil Glass Works v/s 0.P. Batra
Interim Application Appeal No. 2754 of 1997, Suit Appeal No . 484 of 1995 Decided On, 13 January 1998 At, High Court of Delhi By, THE HONOURABLE MR. JUSTICE S.N. KAPOOR For the Appearing Parties: Manmohan Singh, S.K. Bansal, Advocates.
ISSUE
Whether or not the plaintiff is entitled to an injunction against the defendant’s use of the marks “MISTER,” “DEFENCE,” “ARUN,” and “ML,” on the basis that they encroach upon his claimed trademark rights.
RULE
Trademark protection of common or dictionary words is only possible when such words have gained secondary meaning, i.e., they have become distinctively identified with the plaintiff’s goods or services because of continuous and exclusive use. The requirements which are supposedly necessary for the grant of an interim injunction are, A prima facie case, Balance of convenience in the plaintiff’s favor, and likelihood of unavoidable injury if the injunction is denied. Also, fair relief such as injunctions will be withheld if the plaintiff has come to court with dirty hands, has waited too long to take action (laches), or has concealed material facts.
ANALYSIS
In the instant case, the defendant had applied for modification of the interim injunction that was passed in favor of the plaintiff on the ground of change in legal circumstances on the basis of some later Supreme Court judgments. But the court noted that no significant changes in the circumstances had been established till that point of Time.. The relied-upon cases like Vishnudas Trading were relating to rectification proceedings and were factually different from the question of passing-off in the instant case. Thus, the court held that such decisions did not amount to a change in law so as to justify alteration of the injunction order. Further, the defendant could not establish that the injunction had resulted in any undue hardship, which is a prerequisite under Order 39 Rule 4 CPC. As far as the plea of rejection of the plaint under Order 7 Rule 11 was concerned, the court held that although the plaintiff (Borosil) had not used the mark in connection with electrical appliances, and hence the passing-off claim looked weak, the plaint could not be held to be completely bereft of a cause of action. Since there were two reasonable perspectives on the issue, the court refused to dismiss the plaint at the preliminary stage, relegating the issue to be determined after evidence is adduced during trial.
CONCLUSION
The Court held that the requisites for amending or setting aside the previous interlocutory injunction under Order 39 Rule 4 CPC were not met. No material change in circumstances was proved by the defendant, nor any undue hardship proved which would warrant interference with the prevailing interim order. Further, the court held that though the plaintiff had never before used the trademark “Borosil” with regard to electrical items such as grinders or mixers, it couldn’t be conclusively state that this point that the suit had no cause of action. As two possibilities were reasonably available on the point whether such a claim was legally tenable or not, the court refused to reject the plaint under Order 7 Rule 11 CPC. Consequently, the earlier granted injunction was not been dissolved, and the suit was permitted to proceed on the merits for trial.
