S.135 Trade Marks Act | Scope Of Granting Interim Injunction Is Limited, Vigil & Caution Must While Granting Ex-Parte Relief: Kerala High Court

S.135 Trade Marks Act | Scope Of Granting Interim Injunction Is Limited, Vigil & Caution Must While Granting Ex-Parte Relief

Case: G. M. Sheik & Ors. v.  Raja Biri Private Ltd & Ors.

Coram: Justice P. Somarajan

Case No.: FAO NO. 94 OF 2022

Court Observation: “Hence, the court must be more vigil and cautious while granting an ad interim injunction without notice to the counter petitioner/defendant. It would be too adventurous to implement an ex parte ad interim injunction order passed without notice to the defendants/counter petitioners,”

“The purpose of Section 135(2) (c) of the Act is akin to that of an attachment before judgment under Order XXXVIII Rule 5 C.P.C.It is for the purpose of preserving and protecting the interest of the plaintiff and the award that may be passed for payment of damages, costs and other pecuniary remedies, the property of the defendant or his assets can be preserved and protected by way of an ad interim injunction and not for the purpose of preventing any violation of passing off or infringement,”

“In a matter of alleged infringement of or passing off trade mark or trade name, the court should be more cautious and vigilant while passing ex parte interim orders by virtue of Section 135 of the Trade Marks Act. An injunction can be granted only pertaining to the matters included in clauses (a) to (c) to subsection (2) of Section 135 of the Trade Marks Act. While ordering ad interim injunction and ex parte ad interim injunction, the court must be more vigilant and cautious about the exception carved out under sub-section (3), and there should be a prima facie satisfaction that the matter would not fall under the exception so carved out, besides the grounds available for the exercise of jurisdiction under sub-section 2 of Section 135 of the Act,”

“An ad interim injunction shall not be granted in derogation of the right of the opposite party. The exercise of jurisdiction to issue an ex parte ad interim order before notice to the opposite party must reflect the proper consideration of all the abovesaid aspects.”

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S.135 Trade Marks Act