India: “Res Ipsa Loquitor” Revisited In Awarding Injunction To “Diamond” TM

Last Updated: 3 July 2009

Res ipsa loquitur is a legal term from Latin meaning, "the thing itself speaks". Being significantly applied in tort law, the principle first found place in the 1863 English case of Byrne v. Boadle. While the principle of "prima facie" case is used to determine an application for injunction, it differs from res ipsa loquitor inasmuch as the term prima facie means that there is enough evidence for there to be a case to answer, while res ipsa loquitor means that because the facts are so obvious, a party need explain no more.

The High Court of Delhi addressed the pending applications in two cross-suits between against M/s Gandhi Scientific Company (Plaintiffs in CS (OS) No.1192/2007) and Shri Gulshan Kumar (Plaintiffs in C.S.[OS] No.382/2008) praying for permanent injunction for the infringement of copyright, passing off and damages, with respect to the admittedly identical trademark and copyright in "Diamond". Both parties claim to be prior user in respect of which several allegations and counter allegations were made. They also admitted to be engaged in opposition proceedings. Gandhi Scientific claimed to have started manufacturing and marketing pumps and pump spare parts specifically including mechanical seals used in pumps, automobiles and industry. They also averred that the mark was bona fide adopted by them in 1995 and filed for registration in 2005. They contended to have learnt of the impugned adoption in 2007, when they were served a notice of opposition, whereby Gulshan Kumar contended to have adopted the mark in 1990. However, Gandhi Scientific upon enquiry found that Gulshan Kumar had adopted the same commercially only in December 2006, in pursuance to which their application for registration of Trademark was noticed and opposed. An interim injunction had been pronounced ex parte to restrain him from using the trademark/label "DIAMOND". An application to vacate the injunction was filed whereby the grounds of ownership, proprietorship and prior adoption of the trademark/label "DIAMOND" were averred.

The Court noted that the issue in dispute was not with respect to the use or description of the goods, but in fact who was the prior user of the label/ trademark. Upon direction being issued to the parties to submit documents, Gulshan Kumar raised objections about the documents filed by the Gandhi Scientific beyond the time granted by the Court. The Court noted that the time for filing the original document was extended by order with the consent of Gulshan Kumar. Further, on perusal of the products, the Court stated that it was clear that the trademarks as well as the copyrights in question were almost identical except the label used by Gulshan Kumar did not contain the name and address on the packing and that no cogent evidence was adduced to show that the mark/label was used prior to 2007.

Regarding the sales figures, the explanation rendered by Gulshan Kumar was that they had very little work and he did not come within the range of income tax and sales tax, hence it not being necessary to obtain the sales tax number or to file the income tax returns as per law. The issue of the non-mentioning of telephone number on the bills from the year 1990 till March, 2007 was stated not to be compulsory for any citizen to maintain a telephone number. They also submitted that the bills being placed on record were sufficient to serve as the statements of sale figures.

The Court also noted that Gandhi Scientific had raised several contentions regarding submission of documents by Gulshan Kumar. On examining the documents for its contents and inclusions, the Court concluded that the documents filed by Gulshan Kumar were prima facie ingenuine thus squarely qualifying as a case of res ipsa loquitur where the things speak for themselves. The Court mulled over case laws and precedents that were cited in rendering its view vis-à-vis the documents in question. The Court also stated that in view of its observations and findings, it was doubtful if Gulshan Kumar's firm existed prior to 2007. The Court further also opined that it was not necessary for it to deal with each and every document filed by the parties.

It is not necessary for this Court to deal with each and every document filed by the Defendant. During the course of the arguments, when these facts were pointed out to the learned counsel for the Defendant, he tried to give several casual justifications vis-à-vis that these documents are genuine documents, formatting of the bills and details are not the same and the mentioning of the details of telephone and sales tax numbers on the bills are not necessary and mandatory under the law. The Court noted case law in respect of parties praying for discretionary relief and approaching the Courts with clean hands.

The Court considered previously laid precedents that have ruled that a party availing discretionary relief has to approach the court with clean hands and is required to disclose all the material facts, which may one way or the other affect the decision. In the absence of such a disclosure, such a party was said to be barred from obtaining any discretionary relief. The Court observed that at the case at hand, Gulshan Kumar had tried to gain advantage by filing ingenuine documents, thus being guilty of fraud and not worthy of benevolence or fraud.

The Court in view of the discussions and findings denied injunctive relief in the absence of a prima facie case being made out and the application dismissed with costs of Rs. 2,00,000 to be deposited in the name of Registrar General of this Court within four weeks of receipt of this order, who will make it available for utilization of Juvenile Justice.

The Court stating the consideration of evidence being under progress and opining that Gandhi scientific had sufficient material on record about the user of the trademark/label since the year 1999, the interim injunction, earlier granted was made absolute till the disposal of the present suit. The further application filed under Order 39 Rule 4 was also dismissed with costs of Rs. 25,000/- also to be utilized for juvenile Justice.

© Lex Orbis 2009

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