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Non Disclosure Of Communication With Distributor Is Not Fatal

In disputes pertaining to intellectual property right, orders of interim injunction plays Vitol role in deciding the fate of litigation. Normally in IPR dispute, it is very common to ask for relief of interim injunction, including the order of ex parte injunction.

Seeking interim injunction is an equitable remedy. This is well established principle of law that a party who seeks an equitable relief, must do equity. In words, a party seeking the relief of interim order, must approach the Court with clean hands.

Thereby it can be said that Plaintiff is supposed to disclose all the material information while asking for relief of interim Injunction. The Plaintiff is required to approach the Hon'ble Court with clean hands.

It is also well settled proposition of law that non disclosure of facts, which are not material to the dispute between the parties, can not be said to be fatal while granting or declining ex parte injunction.

There can not be straight jacket formula for demarcating the thin line between material or non material suppression. The Hon'ble Court takes its own view deciding upon facts of each case.

If there are non disclosure of earlier communication between the plaintiff and the defendant on the subject matter trademark, it may be regarded as material suppression.

But what could be effect of non disclosure of earlier communication between the plaintiff and distributor of defendant , on the subject matter trademark, was an issue which have been discussed by Hon'ble Courts in few of the Judgements.

The Division Bench, Hon'ble High Court of Mumbai was having an occasion to address this issue while passing its Judgement dated 06.09.2022 in Commercial Appeal bearing Commercial Appeal (L) No.21303 of 2022 titled as Paras Ayurvedic Pharma Limited Vs Salman Iqbal Ahmed Momin and Another.

This Appeal was filed by the Defendant against ex parte order dated 09.12.2021 passed by Hon'ble Single Judge in Interim Application (L) No 28220 of 2021.

The subject matter commercial intellectual property suit was an action for copyright infringement and also for passing off.

The Plaintiff filed subject matter suit on the basis of adoption and user of its unique art work in relation to the product namely medicinal oil or application under the trademark Roghan Sukoon Massage Oil since the year 1989.

As per claim of the Plaintiff, the said Trademark and art was comprised of unique artistic work featuring a unique combination of yellow, orange, and red colors and a particular device. The Plaintiff also claimed to have obtained copyright registration of the artistic work on 22nd April 2014.

As per wordings of Plaint, the Plaintiff in early November 2021 came across the defendant's impugned goods styled under the name Rogan Sukoon Massage Oil, which according to the Plaintiff, was infringing copy of the Plaintiff was infringing copy and accordingly subject matter Suit was filed and ex parte order was obtained.

The Appellant/Defendant filed the Appeal on the grounds inter alia that that the Defendants had already disclosed their proposed new label "to the Plaintiffs" by a Whats App message to +919222058**** in the year June 2021.Hence the Plaintiff/Respondent was guilty of pleading accrual of cause of action only since Nov 2021.

However the Hon'ble High Court of Mumbai rejected this argument by observing that the WhatsApp massage referred to above is apparently sent to a person who is or was a distributor, and that too of the Defendant's product.

The same number is also shown on the Plaintiffs' product. But the fact that the Defendant and the Plaintiffs may have shared a distributor does not substantiate the submission that the Plaintiffs had knowledge of the Defendant's product since June 2021. The knowledge of a distributor is not knowledge of the Plaintiffs.

The Golden line observed in the Judgement was that "The knowledge of a distributor is not knowledge of the Plaintiffs." Similarly the Hon'ble Decision Bench also rejected Defendant's reliance on the earlier mail sent to Plaintiff's distributor.

While this this argument, the Hon'ble Division Bench observed that an email also said to have been sent to one Shri Balaji also could not suffice as such attribution of knowledge to the Plaintiffs, since Shri Balaji was only of several distributors of the Plaintiffs' products. No such email was sent to the Plaintiffs' email address. Accordingly the subject matter Appeal was dismissed.

It is submitted that Idea behind rejecting this argument perhaps may be for the reason that the right holder can not be deemed to be aware of any communication done with one of its distributor. Hence it is clear that until and unless Defendant proves that Plaintiff has suppressed something, which is within the knowledge of Plaintiff's knowledge, it can not said that such non disclosure is fatal.

Case Law Discussed:
Paras Ayurvedic Pharma Limited Vs Salman Iqbal Ahmed Momin and Another
Judgement Date:06.09.2022
Case No. Commercial Appeal (L) No.21303 of 2022
Hon'ble High Court of Mumbai
G.S.Patel and Gauri Godse , H.J

Written By: Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi.
[email protected], 9990389539

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