In a relief to realty major Kalpataru Properties Pvt Ltd, the Bombay High Court has restrained a Kolkata-based FMCG company 'Kalpataru Group' from infringing Kalapataru trademark and trade-name.
The interim injunction was granted on September 3 by Justice Gautam Patel on a notice of motion taken out by Kalpataru Properties Pvt Ltd in a suit filed by it against Kolkata-based Kalpataru Group alleging infringement of its trademark.
The HC has restrained Kalpataru Group using in any manner the impugned mark Kalpataru or any other word identical with or deceptively similar to the registered trade mark of Kalpataru.
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However, the HC granted the interim injunction till September 30 because the defendent's counsel made a grievance that a notice was served to him only a day before the hearing and that he did not get time to seek instructions from the client.
On the basis of this submission, the injunction was granted till month-end and the notice of motion has been kept for final hearing on September 28.
The HC has asked the defendants to file affidavits in reply by September 11 and directed the plaintiffs to file rejoinders by September 21.
"Prima facie, even leaving aside the question of passing off, there is no manner of doubt at all that the defendants' use of the mark is an infringement of the plaintiff's registered trade mark in every respect," said the Judge.
"There is also no question of the defendants' use being bonafide, concurrent or prior to that of the plaintiff," he added.
"In my view, the plaintiffs have made out a more than sufficient case for the grant of an ad-interim relief. The balance of convenience is undoubtedly with the plaintiff.
The question remains about whether the plaintiffs are likely to suffer irretrievable prejudice. I think that the question answers itself," the Judge further noted in his written order.
Plaintiff's Counsel V V Tulzapurkar argued that in November 2014 they learnt that the defendants had begun using an identical mark "Kalpataru" as their trade name, trading style and corporate name but in relation to the services of distribution of FMCG products.
They also found a website hosted by defendants with impugned mark www.Kalpatarugroup.Co.
