The Law of Equity bars a person from bringing an action
arising out of his own misconduct on the basis of the maxim-
"ex turpi causa non- oritur actio". The case
of Supriya Prabhu v. Janus Remedies 2008 (36) PTC
139 (Bom) is an illustration on the point.
The plaintiff brought an action for trademark infringement
and passing off against the defendants for using a mark
COLIVAN- D in respect of their pharmaceutical preparation,
which was deceptively similar to the plaintiff's COLIVON- D
for a similar preparation. The mark was registered in the name
of a company that had gone into liquidation of which the
defendants were Directors. The said company was using the name
prior to 1980. The new company formed by the defendants came
into operation after winding up of the old one. This company
was manufacturing the tablets COLIVAN- D in green packing.
However, they could not show a valid deed of assignment of the
trademark in their favour from the predecessor company. They
relied upon the certificate of registration of the mark issued
under Section 23(2), Rule 62(1), which itself stated that it
cannot be relied upon in legal proceedings. There was no
validity in the deed of assignment issued by a company which
has met a civil death consequent to winding up. The company in
liquidation could not have transferred any right or entered
into a deed of assignment in respect of the registered mark.
Such deeds of assignment even if existing would be invalid vide
Section 531 of the Companies Act. Thus the defendants could not
claim to be the prior users of the mark.
The plaintiffs were ascertained to be the prior users of the
mark by the court who could show the assignment of the mark to
them by the proprietor of their predecessor Field Marc
Services. It was asserted by the plaintiff that she had
incurred huge expenditure in vigorous promotions and had built
up large and valuable reputation that came to be associated
with the plaintiff in course of trade. The defendants were
passing off their product as those of plaintiff's by using
a similar packing and label on their product. The defendants at
this point were able to prove that the packing of the
predecessor of the plaintiff was different from the present one
and that the plaintiff had changed the packing, which was
deceptively similar to that of defendant. The plaintiff could
not dispute it. Thought the defendant did not have a valid deed
of assignment, the act of the plaintiff in changing the packing
to match that of defendant proved to be tainted. He was
apparently an imitator of another person's design and the
court refused to grant him the remedy of infringement and
passing off against the defendants.
In Leather Cloth Company Ltd. v. The American
Leather Cloth Company Ltd, 4 De GJ & S. 137,
142. it was held that "If by use of the trademark in
question, the plaintiff is himself representing and selling his
goods as the goods of another,................ he is violating
the rule on which he seeks relief from the defendant." It
is an established rule of the procedure that the plaintiff
should come to court with clean hands.
Consequently, the court ordered the plaintiff to revert to
the packing adopted by its predecessor and refrain from
marketing the product in the packing resembling the defendants.
The court said "such course would meet the ends of justice
and also ensure that the plaintiff will not be able to pass off
its product as that of the company in liquidation which will
avoid confusion in the minds of the unwary general
public." The court held that both the parties are equally
unmeritorious in the sense that the impugned mark or design is
neither distinctive of the plaintiff nor of defendant.
This is elaboration of a more general rule that he who seeks
justice must come with clean hands and by parity of reasoning,
a plaintiff who seeks the relief of injunction in court must
himself be earnest in his claim.
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