Facts:
In the case ofTTK Prestige Ltd V. K K And Company Delhi Pvt Ltd & Ors’.[1]: the plaintiff is engaged in the business of kitchen home appliances like pressure cooker , gas stoves and so on under the brand name PRESTIGE since 1955. The registration of the mark with respect to class 11 (installation for cooking) was obtained on 16th June, 1981 and with respect to gas stoves on 23rd September, 1999. The defendant no.1 along with defendant no 2 and 3 are also engaged in the business of manufacturing and sale of “gas stoves‟ and its component parts under the trade mark “PRESTIGE”.
In August 2022 plaintiff came across the trademark application dated 2nd November, 2018 filed on behalf of the defendant no.1 for the registration of the device mark PRESTIGE. The plaintiff opposed the registration of the aforesaid mark by filing opposition on 18th August, 2022.
The earliest invoice filed by the defendant no.1 is of 29th March, 1982. The registration of the plaintiff’s mark “PRESTIGE‟ (word per se) under Class 11 in respect of installations for cooking on a “proposed to be used basis” is of 16th June, 1981, which is prior to the user of the impugned trademark in respect of „gas stoves‟ by the defendant no.1. Further the defendant has managed to produce only three invoices and that too of the year 1982 whereas counsel for the plaintiff has placed reliance on the various invoices showing sale of gas stoves by the plaintiff with effect from 20th September, 2007. Counsel for the defendant no.1 submits that he may be given further time so as to file documents to show the use of the trademark „PRESTIGE‟ between the year 1981 till the current date.
Under Sub-Rule 7 of Order XI Rule 1 of the Code of Civil Procedure, 1908 as applicable to commercial suits under the Commercial Courts Act, 2015, a defendant has to file a list of all documents and photocopies of all documents, in its power, possession, control or custody, pertaining to the suit, along with the written statement.
Sub-Rule 10 of Order XI Rule 1 of the CPC further provides that the defendant cannot be allowed to rely on documents, which were in the defendant’s power, possession, control or custody and not disclosed along with the written statement, except with the leave of Court.
A plain reading of the above said explains that along with the written statement the defendant has to file all documents in his power and possession and in support of his case. Additional documents can be filed only with a leave of the Court and upon the defendant giving a reasonable explanation for not filing the same with the written statement.
The Court:
Since no application was filed seeking leave to file additional documents. Therefore the court decided to grant no further time to the defendant no.1 to place additional documents on record. As per the court since defendant no.1 claims to be continuous user of the trademark PRESTIGE from 1981, it should have filed documents evidencing such continuous user. In the absence of any documents, the Court shall presume that there was no continuous user by the defendant no.1.
[1] CS(COMM) 864/2022
DUCTUS EDGE 