Trademark Suit | Defendant Can Cross-Examine Plaintiff On Period Of Brand Use Though Written Statement Not On Record : Supreme Court

The Supreme Court has held that a defendant in a trademark infringement suit can question the plaintiff during cross-examination about the documents showing when the disputed brand name was first used, even if the defendant's written statement has not been taken on record.

A Bench of Justice JB Pardiwala and K Vinod Chandran set aside the High Court's order which had treated the question as a purely factual issue beyond the permissible scope of cross-examination and had directed that it be expunged from the record.

The issue arose from a trademark infringement suit in which Dharampal Premchand Limited had sought, among other reliefs, a permanent injunction restraining the defendant from infringing its trade dress and packaging, a declaration concerning its trademarks, and damages.

During the proceedings, the defendant sought to ask the plaintiff:

“Is it correct that you have no document to show that since when mark BABA is being used?”

The objection to the question was based on the fact that the defendant's written statement was not on record. The High Court consequently held that the question could not be put in cross-examination.

The Supreme Court, however, found the approach untenable.

The Bench noted that the plaintiff itself had alleged that the defendant was using its brand name along with similar packaging and trade dress and had specifically asserted infringement of its registered trademark and copyright.

In that context, the Court held that the defendant was entitled to question the plaintiff about documentary material establishing the period from which the plaintiff claimed to have used the brand.

"When the plaintiff affirms trademark infringement, even if the written statement is not on record, the defendant is entitled to put the question which queries the plaintiff on the document, to substantiate the time from which such brand name was used by the plaintiff."

The Supreme Court accordingly reversed the impugned High Court order and directed that the trial proceed after recalling the plaintiff and recording an answer to the disputed question.

The Bench clarified, however, that its order was confined to the permissibility of the cross-examination question and did not amount to any finding on the merits of the trademark dispute. The parties remain free to raise their respective contentions before the trial court.

The appeal was consequently allowed.

Case : Shabu KN Achary v. Dharampal Premchand Limited

Citation : 2026 LiveLaw (SC) 790

Click here to read the judgment