India: Delhi High Court Denies Injunction In Koxan-Mardia Cross-Suit

Last Updated: 25 June 2009

Interim injunctions are granted upon the consideration of a prima facie case having been established, balance of convenience tilting in favour of the plaintiff and irreparable loss and injury being caused by the denial of an injunction. There have been cases where the Court has also considered the criteria of public interest to determine the grant of an injunction (as witnessed in the Single Judge's pronouncement in the Roche v. Cipla [C.S.OS 89/2008] litigation). The Delhi High Court, off late witnessed the case of M/s Koxan India v. Ramesh Mardia and Ors [IA 1941/2006 in CS(OS) 328/2006 and IA 738/2006 in CS(OS) 1352/2006] which involved the joint hearing of cross-suits filed between the parties. The Court herein found that neither parties had established a prima facie case and opined the issue to be a matter to be discussed in the trial.

The Court took up two applications filed to obtain an order of interim injunction under Order XXXIX Rules 1 & 2 read with Section 151 of the CPC in two suits which are in the nature of cross-suits. Vide an order by the Court to consolidate the two, the matters deliberate upon the use of the trademark "Mardia Cables" claiming exclusive ownership over them in respect of electrical cables, electrical wires and accessories. M/s Koxan India being the plaintiff in the first suit was opposed by Mr. Ramsey Mardia proprietor of Mardia Cables and plaintiff in the second suit. A dispute with respect to the copyright in the art work involved in the trademark /label was also contested in the suits.

The cross-suits were filed in order to prevent the opposite parties from exclusively using and claiming rights over the mark. According to M/s Koxan India, the trademark/label "Mardia Cables" was initially registered in the name of Ramesh Mardia trading as M/s Mardia Cables and no dispute with regard to this fact was raised. It was averred by Koxan India that Ramesh Mardia duly assigned the trademark "MARDIA CABLES" along with its registration and goodwill to Mr. Kamlesh Jain through a deed of assignment and duly recorded on a duly documented Form TM-23. This fact was also undisputed in the proceedings and the assignment notified in the Trademarks Journal.

Koxan India averred that Mr. Kamlesh Jain, who was carrying on business through his sole proprietorship concern under the name Kevin Mardia Cab Industries, had entered into a partnership with Mr. Mahaveer Jain, subsequent to which the name of the concern was altered to M/s Koxan India. On dissolution of the partnership, by virtue of a clause in the dissolution deed, Mr. Kamlesh Jain took over the entire business of the partnership concern, who on the date of dissolution executed a fresh partnership deed between Ms. Lalita Jain and himself. M/s Koxan India, submitted that they had filed a request on Form TM-24 to record the registered trademark in terms of the present partnership. A further request was also made to record the change in the name and address, which stood pending before the Registrar of Trademarks.

It was contended that after the assignment of the trademark/label, the same was used consistently in the course of trade and had resulted in valuable trade and goodwill being vested. M/s Koxan India and its partners stated that nobody other than them could be permitted to use or deal with the trademark /label. It was alleged that Mr. Ramesh Mardia trading through his sole proprietorship concern Mardia Cables had, on or about September-October, 2005, started using the trademark/label bearing the same artistic features as that used by M/s Koxan India, without the leave and licence from Koxan India and/or its partners. They alleged that by doing so, an act of infringement and passing off had been committed in addition to violation of their copyright in the said label. Ramesh Mardia however submitted that he had filed an application for registration of the trademark/label "MARDIA CABLES" in respect of electrical wires, cables and accessories in 1992 and that the application for registration was accepted in 2000 and was granted retrospectively. An additional application was filed for the registration of the mark as a word per se, which was also accepted and advertised in the Trademarks Journal and no opposition to the same was received, upon which it was registered. The marks were said to have been adopted since 1987, but put to extensive use only since 1992.

Ramesh Mardia averred that Mr. Kamlesh Jain had approached him through some common friends with the request that he was willing to manufacture wires and cables for and on behalf of him under the trademark "MARDIA". It was also averred that Mr. Kamlesh Jain had assured that the said products would be manufactured at a reasonable price in loose form. Assignment in respect of the trademark had been requested and that both parties had agreed to re-assign the trademark in case of a break-up in the arrangement between them.

The arrangement continued and Mr. Kamlesh Jain was exclusively manufacturing wires and cables, to which supplies were made by M/s Koxan India (then known as Kevin Mardia Cab Industries). This arrangement continued till February 2005, when, according to Mr. Ramesh Mardia, the dealers began complaining about substandard quality of material. Discussions were held with Mr. Kamlesh Jain, the quality of products did not improve and eventually the assignment was brought to an end. It was stated that after the termination of the arrangement between Mr. Ramesh Mardia and Mr. Kamlesh Jain, Shree Raj Ventech Power Cab Limited was appointed to manufacture products on behalf of Mr. Ramesh Mardia and Mardia Cables.

The validity of the deed of assignment/re-assignment was said to be the issue in the suit. According to Koxan India and Mr. Kamlesh Jain, the document was stated to be a fabricated one, since the date was left blank. The document was stated to refer to Mr. Kamlesh Jain as the sole proprietor of Kevin Mardia Cab Industries, while it was averred that the name had been changed from Kevin Mardia Cab Industries to Koxan India. Form TM-23 was said to be undated and merely referred to the month "May". The same was said to have been unsigned. Further it was averred that during the subsistence of the assignment, how did Mr. Ramesh Mardia apply for registration of the word mark "MARDIA CABLES" in December, 2002.

It was submitted on behalf of Mr. Ramesh Mardia that no injunction ought to have been granted in favour of Koxan India or Mr. Kamlesh Jain inasmuch as they had concealed the factum of the re-assignment. It was also submitted that the partnership deed had been manipulated and fabricated. The sequence of dates incorporated therein was also questioned.

It was pointed out that the deed of assignment was signed by Mr. Kamlesh Jain and was duly verified by a handwriting expert. The order passed by the Deputy Registrar of Trademarks was also verified, which recorded that reasonable opportunity had been given to Mr. Kamlesh Jain to appear and on his failure to do so, an ex parte order which was subsequently challenged and lay pending before the Intellectual Property Appellate Board passed. In this event, the counsel appearing for Mr. Ramesh Mardia / Mardia Cables stated that the registration presently being in favour of Mr. Ramesh Mardia entailed a remedy as an appeal under Section 91 of the Trade Marks Act, 1999.

Assimilating all the pleas that came forth, the Court summarized that neither party had been able to set up a clear prima facie case in its favour. The nature of the disputes was opined to indicate that the same could only be resolved after evidence is led in the course of trial and the plea of both parties to be granted an ad-interim injunction was denied.

© Lex Orbis 2009

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