- (1.) The appellant brought Civil Suit No. 3 of 18th June, 2013 which is pending and is being tried by the learned Additional District Judge, Gurgaon. The suit is for permanent injunction for infringement of trademark and to enforce the protections of Sections 27(2), 28, 29 read with Sections 134 and 135 of the Trade Marks Act, 1999 (for short "the Act"). The secondary relief is for rendition of accounts against the defendants. The appellant as plaintiff sought grant of an interim injunction against the defendant-respondents invoking order 39 Rule 1-2 CPC read with Section 151 CPC to restrain them ad interim from marketing and selling of products by the defendants under their brand name 'Legris' and 'Parker' of which they had Global trademarks. It is pleaded that the appellant company is incorporated under the laws of France with its registered office as given in the cause title. The company was founded in 1918 and over a long period of time achieved annual sales exceeding $ 13 billion as at in the year 2012. It claims to be the world's leading diversified manufacturers of motion and control technologies and systems providing precision engineered solutions for a wide variety of mobile industrial and aerospace markets. In the year 2008, the appellant company acquired the company know as 'Legris SAS\ Accordingly, the appellant acquired sole proprietorship and ownership of various intellectual property rights (I PR) including the trademark "LEGRIS". On December 31st, 2010, Legris SAS merged with the appellant. The merger documents have been placed on record and marked Annexure A-2 (colly). The appellant and Legris SAS stand unified. It is pleaded that the trademark "LEGRIS" was adopted and is being worldwide since 1963 when the merging company started its operations in France. The appellant company registered the trademark "LEGRIS" in a large number of countries across the world including India. The products offered in the markets under the brand name "LEGRIS" are sold/used in India extensively since 1984. Over the years, it has acquired in India, a tremendous goodwill and reputation. In order to cement its goodwill and reputation, it opened its first subsidiary in India under the name Legris India Holding (P) Limited and registered the company on September 05, 2000 with the Registrar of Companies. The appellant also registered a sister concern called Legris India Private Limited on February 20, 2001 with the Registrar of Companies.
(2.) It is pleaded that the appellant entered into an exclusive distributorship agreement with the first respondent/defendant for the territory of Faridabad, Haryana on April 26, 2003 to distribute the products of the appellant in India. On acquisition of Legris SAS in 2008, the distributorship agreement was terminated by the appellant in order to do their business directly with the consumers of its products. The appellant holding proprietorship of "LEGRIS" and "PARKER" trademarks discovered after termination of distributorship agreement with the first respondent that the respondent/defendant had registered the trademark "LEGRIS" with the Trade Marks Registry as it own. It was in May, 2012 that the proprietor of the respondents was found by the appellant to be committing infringement and trademark violations of the appellant's exclusive trademark "LEGRIS" and thus addressed a Cease and Desist letter to the first respondent on 9th May, 2012 putting them on notice to withdraw the trademark registration No. 1798503 in Class II; to cease and desist from using the trademark "LEGRIS" or any other identical or similar mark for any kind of products or services; and calling upon the respondents to give undertaking to the appellant acknowledging the appellant's ownership over the trademark "LEGRIS" and to agree to refrain from future unauthorized use or registration of the appellant's IPR in any manner, whatsoever. In response, the first respondent in his letter dated 15th May, 2012 admitted registration and use of mark but refused to refrain from selling the products under the mark "LEGRIS". The word, "LEGRTS" is a French word with no etymological origin in any Indian language. As the first respondent did not submit to the request of the appellant, it was constrained to file a rectification application on 21st December, 2012 for removal of the respondent's trademark No. 1798503 in Class-II from the trademark register maintained by the Registrar of Trademarks. It also came to the knowledge of the appellant that the company M/s. JMD Pneumatics Private Limited owned by the first respondents No. 1 to 3 had changed their corporate name to "Legris Pneumatics Private Limited" from 20th September, 2012. Accordingly, the appellant filed and initiated appropriate proceedings before the Regional Director, Northern Region,-Ministry of Corporate Affairs under Section 22(1)(ii) of the Companies Act, 1956 for compulsory change of name of respondent No. 4. However, the Regional Director vide his order dated 17th June, 2013 dismissed the application on the technical ground of limitation. The appellant has reserved in the present appeal its right to appeal against the order. It is, in these circumstances that the appellant in order to protect its trademarks LEGRIS and PARKER brought the present suit on 18th June, 2013 together with the application for grant of temporary injunction. An application under Order 26 rule 9 and order 39 rule 7 of the Code of Civil Procedure, 1908 was also filed praying for appointment of Local Commissioner. It is pleaded that the appellant filed its entire documentary evidence in support of the decree at the threshold which are appended to this appeal as Annexure A-3 (colly). Notice of the suit was issued on 18th June, 2013 for 24th June, 2013. The trial court appointed a Local Commissioner for inspection of the premises of the defendant- respondents excluding defendants No. 5 and 6. The Local Commissioner was ordered to submit his report on the next date of hearing i.e. on 24th June, 2013. However, on 24th June, 2013, summons issued to the defendant- respondents No. 1 to 3 were received back with the report of refusal. The Court, therefore, ordered substituted service of the unserved respondents returnable on 2nd July, 2013. The learned Additional District Judge on hearing the appellant and taking cognizance of the report of the Local Commissioner in favour of the appellant held that the identical trade marks LEGRIS and PARKER were being produced and sold by the defendant- respondents and granted ex parte ad-interim injunction in favour of the appellant till the next date of hearing on the ground that the purpose of the interim prayer would be defeated if injunction was not granted. On 11th July, 2013, the defendants entered appearance and contested the case by filing reply to the interim injunction application together with an application under order 39 rule 4 CPC for setting aside the ex parte order dated 24th June, 2013. The miscellaneous applications were also filed including one under order 7 rule 10 and 11 CPC for return of plaint. These miscellaneous applications were filed by respondent No. 5 while respondents No. 1 to 4 sought inter alia vacation of stay order. The ad-interim injunction was extended till the next date of hearing. On 7th July, 2013, the matter was again adjourned and the temporary injunction was extended to 12th July, 2013. On 12th July, 2013, respondent-defendant No. 6 was proceeded ex parte while the written statements were filed by respondents No. 1 to 5.
(3.) The appellant filed the rejoinder. Arguments were heard and the injunction was extended till 17th July, 2013, on which date, the remaining arguments on the stay application were heard and the orders were reserved on 23rd July, 2013 extending the ad-interim injunction till the next date of hearing. The matter was then adjourned to 26.7.2013 when the impugned order was passed vacating ad-interim injunction granted to the appellant and the application was rejected on the ground of lack of jurisdiction. The learned Additional District Judge in the impugned order has reasoned that "in the absence of any substantive proof regarding the branch office or actual business activities carried on by the plaintiff in Gurgaon, the allegations of the defendants that plaintiff neither works in Gurgaon nor personally works for gain, cannot be dismissed summarily.";