In a suit concerning the infringement of the intellectual property owned by “ORRA”, which is an established jewellery brand and the Plaintiff in the case at hand, the Bombay High Court has granted the relief of an interim injunction restraining the defendants from infringing upon the registered trademark of the Plaintiff. The judgment was delivered by a single judge bench comprising Hon’ble Justice S.C Gupte
The facts of the case are that the Plaintiff has a registered trademark, and happened to find a website with the same name operating in sale and delivery of goods in the same class, with the same trademark imprinted on them. The Plaintiff claimed that this act of the Defendants amounted to indringement of the trademark as well as that it was a case of passing off by the defendants.
The court considered the reply filed by the first defendant, wherein they have stated that they are merely a delivery agent for the Chinese manufacturer who also owned the website. The Plaintiff, with the leave of the court added the Indian representative of the Chinese manufacturer as party to the suit. However, in the absence of effective service of summons, prayed for ad-interim relief by way of injunction.
The Defendants were thereafter directed to disclose on oath particulars of sales made by them using the infringing website and with the use of the infringing mark.
Thus, it is apparent from the turn of events in this case that, mere non-delivery of summons is not a bar to granting ad-interim relief, especially in the case of infringement of a registered trademark and the allied violation of passing off.
Passing-off is a common law right, which is usually claimed by the rightful owner of intellectual property to prove, inter alia, that the goodwill of the person claiming has been harmed, how the defendant’s rights cause confusion amongst the public and cause injury to the Plaintiff.
This case further assumes significance, if the dispute in the future relates to cyberspace violations of intellectual property laws which would have a bearing on intermediary liabilities vis-à-vis violation of intellectual property laws and enforcement of an infringing order in cyberspace.