This is a case of a Delhi High court ex parte proceeding concerning trademark dilution. The plaintiff filed a suit seeking a permanent injunction, damages and to restrain them from passing off their products as that of the plaintiff. The plaintiff also pleaded the court to restrain the defendants from using the mark ‘KINLEY’ and to transfer all the web domains related to the same.
In the proceedings, the Delhi High Court, vide order dated 29thApril 2018, granted an interim injunction in favor of the plaintiff and against the defendants. The court proceeded against the defendants’ ex-parte and decreed against the defendants.
In the Ex-parte proceeding, the evidence provided by the plaintiff was confirmed by the courtand the evidence adduced by the petitioner was accepted to be true and valid. The decree by the Delhi High Court is on the line of the Supreme Court in Ramesh Chand Ardawatiya Vs.
Anil Panjwani, (AIR 2003 SC 2508), which upholds that a prima facie proof of the relevant facts constituting the cause of action would suffice and the court would grant the plaintiff such relief as to which he may, in law be found entitled. It goes on further to explain that in a case which has proceeded ex parte, the court is not bound to frame issues under Order 14 and deliver the judgment on every issue as required by Order 20 Rule 5.
However, the trial court should scrutinize the available pleadings and documents, consider the evidence adduced, and would do well to frame the “points for determination” and proceed to construct the ex parte judgment dealing with the points at issue one by one.
The Plaintiff No. 1, in this case, is the registered proprietor of the arbitrary mark KINLEY in class 32. KINLEY has been primarily used by the plaintiff in connection with drinking water. The plaintiff came to the notice of using the mark by the defendant who also falsely claimed that they had used the mark for their water system having collaborated with plaintiff No. 1’s Indian Subsidiary, the Coca-Cola India Pvt. Ltd.
The truth, however, remains that no such collaboration existed. When the further investigation was carried out by the plaintiff it was revealed that the trademark was used openly and prominently for advertising and promotional means. In the investigation, it was also revealed that the defendant No. 1 had applied for the registration of the mark KINLEY with application number 2329491 in class 11.
The section 29(4) of the Indian Trade Marks Act, 1999 clearly defines the concept of Trademark Dilution. A trademark of a company is diluted when its uniqueness is lost owing to its unauthorized use by a different player.