Jk Electricals v. Sancheti Applicances Pvt Ltd

order dated 22.11.2011 We may also add that in vier,v of the pleas raised by the appellants qua the authenticity of the invoices produced by the respondent, alleging them to be fabricated and only handr,vrittell, a. mini trial was conducted - recording testimony of the dealers to whom these invoices had been issuecl. The clecision on the review application is predicated inter alia on these testitnonies. The leamed single Judge noticed that the main arguments advanced in the revielv applications were based on the apparent non consideration by the court of the affidavits sought to be relied upon by the appellants tvhich had. t been procured fi'orn the dealers iu the rnarket. The court dilected examination and cfoss examination of' the deponents, of these. affidavits i.e. the dealers, qua the veracity of those affidavits. These dealers had on affidavits denied having purchased goods fi'om the respondbnt. Howbver, in the cross examination of the deponents, Page 4 of 11 . tr court with a view to confi'ont them about their credibilily regarding contents of their affidavits. Thus, the learned single Judge has ' '' observed in para 12 of the impugned order dated 22.It.201t that the compass of the review is a narrow one arisilrg fi'orn non-advertence to . the affrdavits produced by the defendants/appellants herein. Thereaftgr, the learned single Judge has opined that when the documents - which were hand writteu, were put to them, though the witnesses did not admit all of them, some of them were adrnitted showilg .sale of goods in.the early 1980s and thus establishing the respondent as the prior user of the rnark. The invoices were over different periods and thus the story sought to be.set up thlough'these affidavits of there being no sales of the respondent could not 'be ' believed. The first limb of the subrnissions of the learned senior counsel' ' for the appellant were based on the provisions of the Bureau of Indian Standards Act, 1986 ('the said Act' for short) and the Electrical.Wires,. Cables, Appliances and Protection Devices and Accessories (Quality Coltrol) Order, 2003 ('the said order' for short). Learued coursel drew our attention to the provisions of Section 14 of the said Act providing for compulsory use of the standarcl mark for articles and processes to certain scheduled industries. It is in furtherance of this . Section that the Central Government, after consulting the bureau, issued tire said order. The order referued to afot€said was accordirigly so published. . The sum and substance of the subtnission thus is that the respondent does not have the required registrations as provided for' ' uncler the said order and, in fact, on a raid conducte.d by the But'eau, the violation of the said order was found - resulting even irr documents were put,by the respondent to thdse depouents before the c' .Page 5 of11 lY tn pt'osecution of the respondent. We may note in this context, the, ' submission of the respondent, which is that such a raid was conducted only to prejudice the business of the respondent at the behest of the appellant, and the matter has not attained any finality. The.plea of the leamed senior cotinsel of the appellant in effect is that, if there is infi'ingement of law (in this case it is stated to have occu.red on account of violation of the provisions of the said Act read r,vith the . said order), then the court would not sanctitr such an Act by taking into consideration the sales of goods of the respondent which would be contrary to the rcquirements of the lar,v. The second limb of the subrnission in this behalf arises ftorl the plea that this aspect has not been examined though this rnaLtet' lvas urged at the inception when appeal was filed - where this issue \,vas r ' raised and noticed by the Division Bench; when . the appeal rvas withdrawn to file a review application, ancl; during the hearing of the. review. In the review application, once again, this rnatterwas urged, but was not dealt with. We may notice that, initially, to us this argurnent appeared to have substance - which persuaded us to hear elaborate submissiolls ol1 this aspect alone, as we did not sde any putpose in rernitting the matter back once again to the learned single Judge.' Hor,vever, there is absolutely no merit in this plea for the reasons which we no\,v proceecl to record. Learned counsel for the respondent has pointed by reference to the writlen synopsis of the appellant filed before the leamecl single, ' Judge that there is not even a whisper of this plea at the initial stage. It is trite to say that the court does not reacl each seutence of the. pleadings to come to its conclusions, but the conclusions are basecl on the pleas. advefted to before the court and the submissions advanced. Page 6 ofLl ..'..: : To say the least, it was inappropriate on the part of the appellant to " ' have made a grievance of non-consideration of this plea earlier before the Division Bench while withdrar.ving the appeal, r,vhen the appellant . itself had not urged anything on this aspect before the learned single Judge. The reason for the non consideration of this plea even on the review application is also that this plea is not seriously adverted to by the appellant. We come to this conclusion basecl on the writtel synopsis filed by the appellant itself, where there is only a passing ^f^..^-^^ +^ +Ll- -l ^^ ---irl^ ^--r ^---- ---f- ; reference to this plea without any reference to the relevant provisions of the said Act or the clauses of the said order. L6arned senior counsel a .t fos the appellant concedes tliat it is not he who had made the ' :.. subrnissions before the leamed single Judge at either of the stages and : r ^ thus, obviously, he has beeu instructed incorrectly to contencl that this ' I plea was advanced and not examined by the learned single Judge. Even when we exatnine this plea on'merits, lve find no.rnerit . therein. Leaned counsel for the respondent has placed.before us notifications qua its ploducts which woulcl make the said order lon applicable to the products of the respondent. On verification, this position is not even disputed by the learned counsel for the appbllant, except in respect of two of the products, i.e.:

i) Sr,vitch One Way, Two Way, Bell push (6 Arnp) ' . .. f

ii) SwitchD.p.32Arnp. .":.' Insofar as thesp two products are concerned, as per clause 3 of .., ' :.. : the said otder, it is provided that nothing in the said order is to apply : in relation to export of electrical wit'es, cables, appliances etc. The say " . of the respondent is that these two items are actually s.olely for export purposes, for which BIS licences are not'required as per the saicl proviso. Most of the products of the respondent are stated to be exported to Bangladesh. Page 7 ofll Once again, learned senior counsel for the appellant is not able to dispute the legal'proposition that if these products are only being exported, there is no infi'ingernent of the said Act and the saicl'Order by the respondent. It is still, however, sought to be canvassed that there are some sales in India evell qua these two pr:oducts. In view of what r,ve have recorded aforesald, we are nqt further requirecl to delve intg this issue. As to whether. there is infi'ingemeut of BIS requirernents by sale of these two products in India or not, is not a matter before us. Obviously, having lost before the learned' ' single Judge on merits, a rnountain is sought to be. made out of a rnolehill ol1 an issue which was never, in strbstauce,.urged befqre the learned single Judge. The allegation of the violation of the. said Act / Order qua these two products cannot grant a licence to the appellant to use the trademark. The issue of the user of the trade rnarks in question has to be decided on the basis of the law of the traclernarks and passing off. When these aspects are examined, the respondent is found to have a better right than the appellant. We are constrained to strongly deprecate''the manner in which this case has been plosecuted/defended by the appellant by seeking to ' :.. : put its case on one set of pleas before the leuned single Judge and '. another Set of pleas befbre the Division Bench by incomectly stating " ' /,\-i that the learned single Judge has not dealt with some germane aspects which, as it transpires, were not even gennane ancl, were possibly the. reason why they were not canvassed seriously before the learnecl IY single Judge. The rnost surprising part is that if this issue lvas so germarle, why the appellant did not, at least, press for fi'aming of an ' issue on this account. The suit has to proceed to trial ancl no issue has . been cast on this so-called plea nor was it pr.rr"d before the learned :.^^I^ T,,, *,*,a a4aaaa ^^ ^f^ : single Judge at eithei of the two stages, as aforesaid. Pase B of11 ' ^-b' ...... ' :.. % .t 2\ Learned senior counsel for the appellant souglrt to cast doubts "' on the material produced by the respondetil before the learned single Judge to establish its sales over a period of time from 1980's ourvards. . The learned single Judge has analyzed the matter to come to a prima . facie finding that the vouchers produced by the respondent cannot be disbelieved. Merely because the office copies rnaintained by the respondent are in the nature of carbon copy in hand writing, cannot - thlow a doubt on them especially in view of the mini trial already conducted, where there have been achnissions iu favotu of the respondent by the very deponents/witnesses produced by the appellant. It is, no,doubt, true that the documents in 'support of the sales - though may be emanating from 1980-1981 r,vhen the sales is alleged not to be very large - are not continuous over a periocl of tirne, , ' but tlren'a party cannot be expected to keep 20 years old documents with itself. What is relevant is tliat the own case of the appellant is . based on sales of 1992, which plea is cornpletely belied by the application for registration of the trade mark rnade by the appellant, whele it is categorically stated that the application is made on the basis of "proposed to be used". The application was made in the year 1994. It is not even, thus, permissible for the appellant to plead that it had sales betrveen 7992-Igg4. Leamed counsel forl the lespoudent has also rightly pointed oui to ceriain invoices of flre appellant showing sales tax registration dated 27.05.1984, and invoice of the same very date shorryilrg sales on the salne day. I{e rightly points out that, how is it that on the'same day on which the sales tax verification nutnber is" issued, the invoice forms are got printed and even utilized fol making the salesi The'shoe appears to be on the otlter foot r,vhere the appellant appears .to have produced documents to establish its case. of sales which never existed, as would be apparent fi'om, inter alia, their Page 9 ofll a> 7\I application made for ,registration of the trade mat'k. If these documerils are ignored, there are no documents of sales produced by ' the appellant right till 2005 showing any sales undef the said trademarks in question, though sotrre invoices have beeu filecl shor,ving sales without any mention of the trademark. Thus, these invoices are much later than the periocl of sales shown by the respondeut. The respondent has filed documents to show exports frorn 2003 onwards, and such sales have to be taken into cognizance.*eveu for putposes of local market in view of the provisions of Section 56 of the Trade Marks Aqt, 1999. The aforesaid are the only pleas advancecl before us. We may . notice in the end the principles to be applied for scrutirry by the appellate court qua such allegations of passing off and infiingetnent. Tirese have been succinctly set out in the judgrnent of Wandel Ltd. and Aru. v. Antox India P.Ltdl 1990 (Supp) SCC 727. [t has been emphasized that the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal rights assetted'by the plaintiff and its alleged violation are both contested and uncertain and remaiu ' uncertain till they are established at the trial on evidence. The interlocutory remedy is thus intended to preserve the status quo of the rights of the parties which may appear on a prirna facie cdse. The appellate court is ndt to intelfere with the exercise of discretion of the court of the first instanie and substitute its ol,vn discretion except. where the discretion has' been shown to have been exercised arbitrarily, capriciously, perversely or where the cotu't has iguored the settled principles of law regulating grant or refusal of interlocutory' injunctions. The appellate court has not to re-assess the'matter and seek to reach a conclusion different from the one reached by the court below, solely on the ground that if it had considered the matter on the . ,r Page L0 oflL L3 'r \ , trial stage, it r.vould have come to a co'trary conclusio'. rhus, if discretio' is exercised by the trial court in a judicial mamer, the fact that the appellate'court would have taken a clifferent view cannot justify interference'with the trial court's exercise of discretion. These principles, if applied to the facts of the preseut case, leave no.nallner of doubt that there is no principle on which the appellate court is required to interfere with the findings of flre learned single Judge. The counsel in the otrrer appeal dealing with the trade mark 'WINNER' was only riding piggy back on the first appeal - facecl rvith no registratioir of its tradernark, ancl thus r.elying olly o1 tle aspects of sales of the two parties. We find both the appeals rneritless and dismiss the same with costs quantified at Rs.25,000/- each. Needless to say that a'y expression of vierv i' these appeals would not prejudice the final result of the suits post trial. . t"1:rf\q/L^<_, SANJAY IflSIIAN I(AUL. J DECEMBER 13, 2OI2 dm VIPIN SANGHI, J Y Page 1l ofL1

\3 IN THE HIGH COURT OF DELHI AT NEW DNLHI + FAO(OS) Bl20r2 DI( ELECTRICALS INDUSTRIES vefsus SANCHETI APPLIANCES PVT. LTD ..... Appellant Tluough: Mr. V.P,Singh, Sr. Advocate with Mr. Manoj Khanna, Ms. Neharika Maini, Ms. Beenasharv Soni and Ms. Surachita Majurndar, Advs. ..... Respondent Through: Mr. S.I(.Bansal with Mr. Pankaj Kumar and Mr.Vikas I(rera, Advs. AND I + FAO(OS) 9120t2 JK ELECTIUCALS Through: Mr. v.P.si'gl1 *r. o;;;#,5*i?f,' Mr'. Manoj I(hanna, Ms. Neharika Maini, Ms. Beenashaw Soni ancl Ms. Surachita Majurndar, Advs. versus SANCI{ETI APPLIANCES PVT. LTD ....i Itespondeut Through: Mr. Sanjeev Singh r,vith Mr. Sudhir, ' Advs. c CORAM: HON'BLD MR. JUSTICD SANJAY IilSHAN I(AUL HON'BLE MR. JUSTICE VIPIN SANGHI ORDtrR oh 13.12.2012 The appeal is directed agailst the irnpugned order dated 0g.OZ.ZOl1 disposing of the applications of tlie respondenVoriginal plaintiff as well as.the applications filed by the appellants in their Page 1 of11' r1 respective. counter clairn qua the trademark 'PRETTY' and ,wINNER', respectively in favour of the respondent. The second order which is assailed by the appellant is dated ?2.IL.20LI passed on the review applications filed qua the salne trade malks by the learued single Judge. We rnay also note that the col1ll11oll order is qua four suits but ... the appeals have been filed only by two parties qua the two aforesaid trademarks. It is the case of the respondent that the appellants as the original defendants were passing off their goods as that of the reslrondent in respect of the said two trademarks (for purposes of record, FAO (OS) No.8/2012 deals with the passing off qua the trademark 'PRETTY' wlrile FAO (OS) No.9 /20L2 deals .r,vith the trademark 'WINNER'). It is the case of the respondent that their trademat'k had gained considerable reputation qua the goods in qtrestion - being electrical accessories, fittings, fuse, fuse uuits, switches etc. In order to support this plea, the respondent relied upoll, inter alia, the invoices of local sales, as well as shipping documents to Bangladesh qua the products... - The claim of the user made by the respondeut is since early 1980 and exports are fi'om the year 2000, It has also. been pleaded by them that the packaging of the products is identical. The defence insofar as the traclemark 'PRETTY' is concerned substantively emanates from the registlation of the trademark in favour of the appellant with effect ft'om 22.05.tgg4. The appellant contends that the respondent had only produced uleliable and spurious sale documents and effectively no business was being caruied on since 1980 in respbct of the aforesaid goods lvith the trade marks in question. In the alternative, it has been pleaded that eveu if such fusiness was being caried on, the material produced showed little and Page2of1l,. i :' .:t{ insignificant sale, and that too for intennittent period lvithout any continuous sales being established. The learled single Judge has, however, found in favour of the respondent as noticed above. This judgtnent dated 09.02.2011 is predicated on a finding that the respondent has placed docunteutaty evidence to the effect that it was tnaking use of the two tt'ademarks .PRETTY' and .wINNER', since 1980s by filing invoices of local sales from 1980s and 1990s and of exports -from the year 2000 onwards. A specific finding was returned that the claim qua the tradernark 'PRETTY' ntade by the appellant of its being used since 7992 was fallacious as the application made by the appellant for.. . registration of the trade matk 'PRETTY' in the year 1994 itself stated that the said rnark was "proposed to be used", pending registration of the mark. Thus, any so-called sales have been disbelieved. The learned single Judge has also opined after noticing the legal position that if there is a user of a trade matk by a parfy in favotrr of another party prior to the date of registration of the said trade rnar\ tlren that user can continue (as in the case of the fespond