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The Supreme Industries Limited V. Young India Impex: Bombay High Court Recalls/Vacates Ex-Parte Orders

LIVELAW NEWS NETWORK
15 Feb 2021 5:14 AM GMT
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Bombay High Court

In June, 2020, Plaintiff viz. The Supreme Industries Limited, filed a Suit, being Commercial IP Suit (L) no. 6430 of 2020, against the Defendant, M/s. Young India Impex, for infringement of their trade mark SUPREME; infringement of their design bearing Design no. 304972 dated 20.04.2018; and passing off. The design in question was that of a folding table. Hereunder are Plaintiff's and Defendant's products bearing the said design.


Plaintiff in its Plaint stated that they designed an adjustable plastic table called SCISSOR in the year 2018 and is the outcome of the consistent research and development. Thereafter, it was submitted that the Plaintiff obtained registration of its said TABLE under provisions of the Designs Act, 2000, vide registration No. 304972 dated 20.04.2018 in class 06-03.

It was further stated that as part of their investigation, the Plaintiff's investigator team came across the Defendant based in Surat offering for sale, the scissor table design of the plaintiff, online on ecommerce website www.amazon.in, using the Plaintiff's trademark SUPREME and that Defendant was selling spurious and inferior quality unbranded table design bearing an identical shape and design as that registered and used by the Plaintiff.

With the above facts, Plaintiff moved the above matter for ex-parte ad interim order before Hon'ble Bombay High Court and sought appointment of Court Receiver for seizing the alleged goods bearing the infringing Foldable Table Design and trade mark SUPREME. By placing the above facts before the Hon'ble Court granted an ex-parte order on 30.06.2020 appointing a Court Commissioner to enter the premises of the Defendant and seize the alleged infringing goods. As per the said order dated 30.06.2020, raid was conducted and Defendant's goods were seized. However, Court Commissioner's report stated that the goods did not bear Plaintiff's mark SUPREME. The said order was further extended vide an subsequent order dated 30.07.2020.

Defendant, on the other hand filed an application under O.39 Rule 4 of CPC to vacate the said orders stating that the Plaintiff had snatched an ex-parte order by suppressing material and that the Defendant is in fact a prior user of the design complained of. Defendant in their application filed voluminous material to show that they were in fact selling their products bearing the said design since the year 2015, which is three years prior to the date of Plaintiff's Design. Regarding use of Plaintiff's trade mark SUPREME, Defendant in their Application stated that the Plaint clearly shows that the product bears the mark AMAZE, which is a registered trade mark of Defendant and not SUPREME as allegedly brought out by the Plaintiff. Defendant also produced material to show that the said product bearing the said Design was sold by the Defendant on Amazon under the mark AMAZEA since the year 2015 and there were in fact reviews of users of their product since commencement of online sale of their products.

The Application further stated that Plaintiff's registration and use, goes to the root of the matter as under Section 4 of the Designs Act, 2000, for any Design to be valid, the said subject Design should be (i) 'new or original' and (ii) has not been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration; or (iii) is not significantly distinguishable from known designs or combination of known designs. Therefore, if the Court would have been informed about Defendant's prior use of their product bearing the said design, the Plaintiff would never have obtained such ex-parte orders.

The matter was ultimately placed before Hon'ble Mr. Justice G.S. Patel and the Hon'ble Judge was pleased to recall/vacate orders dated 30.06.2020 and 30.07.2020 and the same was consented by Plaintiff. The contentions with respect to cancellation petition filed by Defendant against Plaintiff's registered design are kept open and would be decided on merits of the case. In view of the same the entire Suit was disposed of.

Plaintiff (The Supreme Industries Limited) was represented by Dr. Veerendra Tulzapurkar (Senior Advocate) along with Ms. Parveen Anand, instructed by, GS Hegde and VA bhagat.

Defendant (Young India Impex) was represented by Mr. Rashmin Khandekar, along with, Mr. Rahul Dhote and Mr. Aditya Mahadevia, instructed by, Literati Juris.

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