Marce Cement Works Ltd v. Shree Cement Limited And ORS
IA No. GA 1 of 2021 APOT No. 146 of 2021 with CS No. 147 of 2021
IN THE HIGH COURT AT CALCUTTA
In Appeal from its ORDINARY ORIGINAL CIVIL JURISDICTION CIVIL APPELLATE JURISDICTION (Commercial Division) Marce Cemen Works Ltd.
Versus
Shree Cement Ltd. & Ors.
Before:
The Hon'ble Justice I. P. MUKERJI And The Hon'ble Justice ANIRUDDHA ROY Date: 13th December 2021 (via Video Conference) Appearance:
Mr. Mahendra Prasad Gupta Advocate Mr. Samit Rudra, Advocate Ms. Antara Panja, Advocate for the appellant Mr. Rupak Ghosh, Advocate Mr. Prasanta Kr. Dutt, Advocate Mr. Susanta Kr. Dutt, Advocate Mr. S. Banerjee, Advocate for respondent no. 1 Mr. Saptarshi Kr. Mal, Advocate Mr. Anurag Mitra, Advocate Mr. Prinkar Agarwal, Advocate for respondent nos. 2 & 3 The Court: We admit this appeal.
It is against an ex parte ad interim order dated 16th August 2021 in a trademark action in terms of prayer (a) of the notice of motion, which is as follows:
"(a) Injunction restraining the Respondents by themselves and their servants, agents, directors, representatives, dealers, distributors, stockiest and/or all person claiming through or under or controlled by them
and the like from using in relation to cement and/or any of its goods and in particular the goods for which the Petitioner's trademarks are registered, the Impugned marks as shown in Annexures 'H', 'I', 'J' and 'K' hereto and/or any other mark which is identical with and/or deceptively similar to Petitioner's trademarks and/or any other mark containing and/or using any other prominent and/or essential features of the petitioner's trademarks so as to infringe the Petitioner's registered trademarks bearing registration Nos. 2947314 and 4348859 being Annexure 'A' and 'B' hereto;"
A Receiver was also appointed to make an inventory of the goods. The order was made operative for six weeks. The application was made returnable after five weeks. In the end of September, 2021 (date illegible) the appeal was filed. The stay application is sought to be moved today.
In the meantime, we are told that the application appeared before the learned single judge and the interim order extended. We have seen the rival marks in court today.
We are of the opinion that at the ex parte ad interim stage the learned judge has exercised her discretion correctly in passing the order of injunction. However, this order is subject to be varied upon disclosure of adequate materials before the learned trial court by the respondents.
We are of the view that the application should be heard out by the learned trial judge. We keep all points open. Let affidavits be exchanged before the learned trial court according to the following directions.
Affidavit-in-opposition be filed by 24th December 2021. Affidavit-inreply may be filed by 10th January 2022. The application may be mentioned before the learned trial court.
Any prayer for extension of the interim order may also be made before that court.
The appeal (APOT No. 146 of 2021) and the connected application (IA No. GA 1 of 2021) are disposed of accordingly. (I. P. MUKERJI, J.) (ANIRUDDHA ROY, J.) R. Bose