INTRODUCTION:
The case[1] is a miscellaneous first appeal filed under order 43 Rule 1(r) read with section 104 of CPC against the order passed by the Additional City Civil Judge, Bengaluru. In the following impugned order the judge had allowed the application filed by the Respondent –Plaintiff for temporary injunctions and restrained the Appellant – Defendant from infringing the registered mark of the Respondent- Plaintiff “BLINKHIT” by using the mark “BLINKIT”.
FACTS OF THE CASE:
The Respondent-Plaintiff filed a suit against the Appellant- Defendant for permanent injunctions amongst other reliefs. The respondent was using its registered mark “BLINKHIT” and “iBLINKHIT” in various classes since 2016. The respondent contends that over the years he has gained wide reputation and goodwill pursuant to its mark with unique B device.
The defendant known by name “Grofers India Private Limited” in the year 2021 started using the trademark “BLINKHIT” and thereby infringed the registered trademark of the plaintiff. The plaintiff then filed the suit along with an application seeking temporary injunction.
Proceedings:
In response to the suit filed by the plaintiff along with the application for temporary injunction, the defendant filed the written statement as well as objection to the interim application. After the hearing was conducted the trial court passed the order in the favour of the respondent – plaintiff by allowing temporary injunction. Aggrieved by the decision of the trial court the Appellant- Defendant filed appeal.
Appellant:
The counsel for the appellant argues that the order passed by the trial court is erroneous, arbitrary and contrary to the material on record as well as settled principles of law. To set aside the orders of the trial court the counsel for the appellant states that the respondent had suppressed the material facts as the registered mark of the respondent “BLINKHIT and iBLINKHIT” were registered in Australia and had been revoked. The counsel further argued that mere registration of the mark is not sufficient if the mark is not utilized. The respondent had not utilized the mark for carrying business ever since the registration. The counsel highlighted that the activity carried out by the mark of the appellant and respondent were different from each other as well as their appearance, structure, conceptuality and phonetics were completely distinct. The respondent counsel also placed reliance on section 17 of the Trade Marks Act, 1999 as the marks were device marks.
Court:
The court observed that the main reason for the passing of order by the trial court was that “the respondent had obtained the registered trademark of BLINKHIT / iBLINKHIT much prior to the filing of the suit and even before the appellant started using the word BLINKIT for carrying on its business.”
The court agreed with the contention made by the appellant that “mere obtaining of registration of a trademark (device mark) comprising of the word BLINKHIT / iBLINKHIT component cannot be construed or treated as a document of tile as held by the Apex Court in the case of S. Syed Mohideen vs. P. Sulochana Bai, (2016) 2 SCC 683.”
The court observed that the nature of the activity alleged to have been engaged in by the respondent – plaintiff is entirely distinct from that which is undisputedly engaged in by the appellant – defendant, and as a result, merely obtaining trademark registration by the respondent – plaintiff to engage in activity that was entirely distinct from the appellant – plaintiff cannot be used as the basis for concluding that the respondent had made out a prima facie case. Further nothing legal or acceptable material was placed by the respondents to prima facie establish that they were carrying on business using/utilising the said trademarks whereas the account statements of the respondents clearly indicated that no business was being carried on and no income was generated by the respondent by using the trademarks.
Decision of the Court:
The Court held that the trial court errored in allowing I.A.No.1 filed by the respondents and therefore the said impugned order of the trial court was set aside as order passed was wholly erroneous, arbitrary and contrary to the material on record as well as well settled principles of law.
[1] BLINK COMMERCE PRIVATE LIMITED V. BLINKHIT PRIVATE LIMITED, MFA No. 5756 of 2022
DUCTUS EDGE 