Team code: IMC1940

M.S. RAMAIAH COLLEGE OF LAW

INTRA MOOT COURT COMPETITION
2019

BEFORE THE HON’BLE HIGH COURT OF DELHI

Shahi Mughlai Darbar……………………………………….……………APPLICANT

V.

Sam’s Mutton Delight………………………………………………….…..RESPONDENT

WRITTEN ON BEHALF OF APPLICANT

WRITTEN ON BEHALF OF APPLICANT
 T ABLE OF CONTENTS

INDEX OF AUTHORITIER ..................................................................................................(iii)

STATEMENT OF JURISDICTION ......................................................................................(v)
STATEMENT OF FACTS…………......................................................................................(vi)
STATEMENT OF ISSUES ....................................................................................................(viii)
SUMMARY OF ARGUMENTS.............................................................................................(ix)
ARGUMENTS ADVANCED .................................................................................................(x)
PRAYER ……………………………………………………………………………………..(xxi)

(ii)

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 INDEX OF AUTHORITIES

CASES
1. Tata Motors Limited vs Jsc Vtb Bank Ltd, 2012(130) DRJ142.
2. Dhariwal Industries Ltd. & Anr vs M/S M.S.S. Food Products, A.I.R 2005 S.C. 1999.
3. Reckitt and Colman vs. Borden, [1990] 1 WLR 491.
4. Laxmikant V. Patel v. Chetanbhai Shah and Anr, A.I.R 2002 SC 275.
5. Perry v. Truefitt, (1842) 6 Beav. 66.
6. T.V. Venugopal vs. Ushodaya Enterprises Ltd. and Ors., JT 2011(3) SC 225.
7. Wockhardt Limited Vs. Torrent Pharmaceuticals Ltd. and Ors., A.I.R 2018 SC 5106.
8. Palm Grove Beach Hotels Pvt. Ltd. vs. Royal Palms (India) Pvt. Ltd, 2016 (6) BomCR 366.
9. Pidilite industries v. Poma-Ex products, 2017 (72) PTC 1 (Bom).
10. Puma Se & Anr. v. Nikhil Thermoplast Ltd. & Ors, CS(COMM) 992/2016.
11. Century Traders Vs. Roshan Lal Duggar Co., AIR 1978 Delhi 250.
12. Hindustan Radiators Co. v. Hindustan Radiators Ltd, AIR 1987 Del 353.
13. Sun Pharma Laboratories Ltd. v. Lupin Ltd. & Anr, 2018 (74) PTC 103 (Del).
14. Win-Medicare Ltd. vs Dua Pharmaceuticals Pvt. Ltd, AIR 1996 Del 612.

(iii)

WRITTEN ON BEHALF OF APPLICANT

STATUTES
1. Code of Civil Procedure, 1908

BOOKS
1. Christopher Wadlow, Law of Passing Off, 1995 Edition

ONLINE SOURCES
1. Manupatra online resources, http://www.manupatra.com
2. Lexis Nexis Academica, http://www.lexisnexis.com/academica.
3. Indian Kanoon, https://indiankanoon.org.

(iv)

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 STATEMENT OF JURISDICTION

The jurisdiction of Delhi High Court is invoked and has been approached under Section 20 of
Code of Civil Procedure, 1908. Interlocutory injunction is being heard by the court under Order
XXXIX Rule 1 of the Code of Civil Procedure, 1908.

(v)

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 STATEMENT OF FACTS

Legends has it that to ensure a nutritious diet Shah Jahan’s wife ordered to prepare a dish with
meat and rice with spices and saffron that is cooked over wood fire. And that’s how Biryani was
originated. For more than three centuries, the recipe for the perfect traditional Mughlai biryani
was passed on within generations.
After independence, Khudabaksh a descendent from the family of the Shahi Khansama opened a
restaurant in Chandni Chowk called Shahi Mughlai Darbar popularly known as SMD. It was
ranked as one of the best places in Delhi to have Biriyani. It was so popular that many tour
guides would include a meal at the restaurant as a part of the local sightseeing itinerary. Despite
the growing demand and several opportunities, Khudabaksh never opened another branch of his
restaurant as he didn’t want to compromise with the quality of the food being served. Later his
son Taimur took over the business of managing the restaurant.
Sam Maxwell was an entrepreneur based in Mumbai. In 2012 he started a range of packaged
food products with new technology to preserve non-veg food for longer duration and could be
cooked in no time using microwave. The response to packaged mutton biriyani was very
positive. So, adapting to the requirement of the market Sam focused entirely on packaged Mutton
Biryani. He launched a new Brand called Sam’s Mutton Delight and released in Mumbai and
Pune in 2014. In 2015 he applied for the registration of trademark SMD.
As a part of expanding the business, in 2019 he introduced the packaged Mutton biryani in Delhi
under the brand name SMD. There was no launch event or marketing held for the product. It was
as if one fine day people found packets of packaged mutton biriyani in supermarkets. Word
spread that Shahi Mughlai Darbar has spread its wing and has entered into the foray of packaged
good items, the sales of SMD packaged biryani skyrocketed.
When Taimur got to know about it he issued a legal notice to Sam Maxwell calling him to cease
and desist from selling packaged mutton biryani in the name and style of SMD on the following
grounds:
1. The trade description is false and misleading.
2. Shahi Mughlai durbar has a prior and bonafide use of the mark SMD.
3. The mark SMD use by Sam is deceptively similar to the one use by the restaurant.
(vi)

WRITTEN ON BEHALF OF APPLICANT

4. As the registration is still pending, this is a clear case of passing off.
Sam responded by stating that both the businesses are under different classes, so the question of
confusion does not arise. Also, the class of person to which the item is targeted is different. And
he refused to cease the production and sale of SMD.
Being aggrieved by this Taimur has instituted a suit before the Delhi High Court seeking an
order of injunction to restrain Sam from the sale of any product under the brand SMD within the
territory of Delhi.

(vii)

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 ISSUES RAISED

I. Whether the current suit filed by Taimur seeking an order of injunction is maintainable?
II. Whether this is a case of passing off?
III. Whether the adoption of the mark SMD by the respondent is diluting the distinctiveness of
the applicant’s trade mark and is the applicant entitled to injunction?

(viii)

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 SUMMARY OF ARGUMENTS

I. Whether the current suit filed by Taimur seeking an order of injunction is

maintainable?
The present court has the territorial jurisdiction under sec. 20 of CPC to entertain the suit.
Acc. To sec 20 of CPC the cause of action and place of commercial transaction should arise
within the territory of the court. In the present case all these conditions are met. Also sec 27
of TM Act 1999, is no bar to the court to exercise its jurisdiction.

II. Whether this is a case of passing off?

In the case of Reckitt and Colman vs. Borden the classical trinity was established which
highlights the main aspects to be full filled to prove passing off i.e. “Reputation and
goodwill” which is very clear from the facts about Shahi Mughlai Durbar,
“Misrepresentation” that was done by Sam’s Mutton Delight by presenting it under the brand
name SMD and “Damages” for which foreseeability is sufficient.

III. Whether the adoption of the mark SMD by the defendants is diluting the
distinctiveness of the Applicant’s trade mark and is the applicant entitled to
injunction?
The trademark used by defendants is deceptively similar i.e. Biryani so the customer targeted
are also similar. For injunction three aspects need to be prove i.e. Prima facie case need to be
established which is very clear from the facts, Balance of convenience and irreparable
damage, which are satisfactorily proven, thus the applicant is entitled to injunction.

(ix)

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 ARGUMENTS ADVANCED

I. Whether the current suit filed by Taimur seeking an order of injunction is

maintainable?
This Court has the territorial jurisdiction under Section 20 of the Code of Civil Procedure, 1908
(CPC) to entertain the suit. From the facts of the case it is clear that “cause of action” has arisen
at New Delhi.

Section 20 of CPC:1

Other suits to be instituted where defendants reside or cause of action arises. - Subject to the
limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose
jurisdiction—

(a) The defendant, or each of the defendants where there are more than one, at the time of the
commencement of the Suit, actually and voluntarily resides, or carries on business, or personally
works for gain; or

(b) any of the defendants, where there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is given, or the defendants who do not
reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such
institution; or

(c) the cause of action, wholly or in part, arises.

In the case of Tata Motors Limited vs Jsc Vtb Bank Ltd it was illustrated as under-
For example, a company „A‟ has its sole office at place „B‟ and cause of action has arisen at
place „C‟. „A‟ can invoke jurisdiction of court at place „B‟, by taking aid of Section 20(a) CPC
(x)

1
Code of Civil Procedure, 1908, Sec20.

WRITTEN ON BEHALF OF APPLICANT

or at place „C‟ by placing reliance on Section 20(c) CPC. In case „A‟ has principal office at
place „B‟ and subordinate offices at place „D‟ „E‟ and „F‟ and „cause of action‟ has arisen at
„D‟ and also at „C‟, in that event, plaintiff can institute a suit at place „D‟ by invoking Section
20(a) CPC or at place „C‟ by invoking Section 20(c) CPC, but it cannot institute a suit at place
„B‟ where „A‟ has its principal office. 2
It is evident from the fact sheet that paragraph 7&8 of the fact sheet read as under-
Paragraph 7- ‘As part of expanding the business, in the year 2019, Sam Maxwell introduced the
packaged Mutton Biriyani under the Brand name SMD in Delhi’.
Paragraph8- ‘Word spread that Shahi Mughlai Darbar has spread its wings and has entered into
the foray of packaged food items. The news spread like wildfire and considering that Shai
Mughlai Darbar was synonymous with exceptional delicious mutton biriyani, the sales of SMD
packaged Mutton Biriyani skyrocketed’.
A suit instituted on the Original Side of the High Court of Delhi is maintainable since a part of
cause of action had accrued within the territorial jurisdiction of the Delhi court.
That commercial transaction took place in Delhi, business was being carried on and thus cause of
action arose and Hence the court has jurisdiction to entertain the present suit.

On examining the section 27(2) of Trademark Act 1999, it is evident that the usage of the terms
‘Nothing in this Act’ gives an overriding effect over section 27(1) and 134(c) of Trademark Act
1999, and thus will not bar this court from entertaining this suit.
And as in case of Dhariwal Industries Ltd. & Anr vs M/S M.S.S. Food Products it was clearly
contended that-

“The rights of action under section 27(2) are not affected by section 28(3) and section 30(l)(d).
Therefore, registration of a trade mark under the Act would be irrelevant in an action for passing
off. Registration of a trade mark in fact does not confer any new right on the proprietor thereof
than what already existed at common law without registration of the mark. The right of goodwill
& reputation in a trade mark was recognized at common law even before it was subject of
statutory law. Prior to codification of trade mark law there was no provision in India for
(xi)

2
Tata Motors Limited vs Jsc Vtb Bank Ltd, 2012(130) DRJ142.

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registration of a trade mark. The right in a trade mark was acquired only by use thereof. This
right has not been affected by the Act and is preserved and recognized by sections 27(2) and 33."
3

This clearly explains the superiority of Protection of Passing off over infringement.
And for all these reasons we request the court to entertain the present suit.

II. Whether this is a case of passing off?

In order to establish that this is a clear case of passing off 3 essentials are to be proved as was
established.
The case of Reckitt and Colman vs. Borden4, (1990) elucidates the essential ingredients to
constitute a case for passing off, highlighting that the classical trinity of reputation,
misrepresentation and damage must be established in order to succeed in an action of passing
off.
1. Goodwill & Reputation
From the factsheet the existence of Shahi Mughlai Darbar from the period after Independence in
Chandni Chowk area of Old Delhi is clear to establish that the restaurant has been in function
from a long period and it came to be popularly known as SMD and was even ranked as one of
the best places to have Biriyani in Delhi5 and further so much was the popularity of the
restaurant that many tour guides would include a meal at the restaurant as a part of local sight
sightseeing itinerary6, so it was also a tourist attraction as it was the authentic recipe originating
from the time of Shah Jahan and therefore it had gained a historical importance. Shahi Mughlai
Darbar had come become synonymous with exceptional delicious mutton biriyani7.
In Laxmikant V. Patel v. Chetanbhai Shah and Anr8.
This Court observed as under:
A person may sell his goods or deliver his services such as in case of a profession under a trading
(xii)

3
Dhariwal Industries Ltd. & Anr vs M/S M.S.S. Food Products, A.I.R 2005 S.C. 1999.
4
Reckitt and Colman vs. Borden, [1990] 1 WLR 491.
5
Factsheet, Para 1.
6
Factsheet, Para 2.
7
Factsheet, Para 3.
8
Laxmikant V. Patel v. Chetanbhai Shah and Anr, A.I.R 2002 SC 275.

WRITTEN ON BEHALF OF APPLICANT

name or style. With the lapse of time such business or services associated with a person acquire a
reputation or goodwill which becomes a property which is protected by courts. A competitor
initiating sale of goods or services in the same name or by imitating that name results in injury to
the business of one who has the property in that name. The law does not permit any one to carry
on his business in such a way as would persuade the customers or clients in believing that he
goods or services belonging to someone else are his or are associated therewith. It does not
matter whether the latter person does so fraudulently or otherwise. The reasons are two. Firstly,
honesty and fair play are, and ought to be, the basic policies in the world of business. Secondly,
when a person adopts or intends to adopt a name in connection with his business or services
which already belongs to someone else it results in confusion and has propensity of diverting the
customers and clients of someone else to himself and thereby resulting in injury.

From the above mentioned facts of the case it is evident that Shahi Mughlai Darbar had gained
extensive reputation in Delhi and as it was held in the Laxmikant V. Patel v. Chetanbhai Shah
and Anr that when with lapse of time the business or services acquire a reputation or goodwill it
becomes a property which is protected by courts and no later developed business or services
must whether or not with good intention be allowed to carry on under the name or trademark of
the prior user which would lead to confusion and therefore result in substantial damage to the
original user of the mark.

2. Misrepresentation
From the facts of the case it is evident that when Sam Maxwell as a part of expanding his
business introduced his packaged Mutton Biriyani under the brand name SMD in Delhi
there was no launch event or marketing held for the introduction of the product also the
name and style of the mark SMD used by Sam Maxwell was deceptively similar to the
mark SMD of Shahi Mughlai Darbar and from the facts of the case we know that People
woke up to find packaged mutton biriyani in the market under the name SMD and
believed that it was originating from Shahi Mughlai Darbar because they had never heard
of Sam’s Mutton Delight as there was no advertisement or news and SMD used by Sam
Maxwell was deceptively similar to mark SMD used by Shahi Mughlai and this SMD had
(xiii)

WRITTEN ON BEHALF OF APPLICANT

 come to become synonymous with Shahi Mughlai Darbar’s exceptional biriyani and
rumor spread that Shahi Mughlai Darbar has spread its wings and because of this the
sales of SMD packaged mutton biriyani skyrocketed. This is a clear case of
misrepresentation because whether there was intent to defraud is unnecessary but the fact
that people were deceived which led to increase in the sales of packaged mutton biriyani
thereby causing damage to the Plaintiff’s business and violating the proprietary rights
vested in the Plaintiff is sufficient.
In Perry v. Truefitt Lord Langdale R.9 held-
“A man is not to sell his own goods under the pretence that they are the goods of another
man". Accordingly, a misrepresentation achieving such a result is actionable because it
constitutes an invasion of proprietary rights vested in the Plaintiff. However, it is a
prerequisite of any successful passing off action that the Plaintiff's goods have acquired a
reputation in the market and are known by some distinguishing feature. It is also a
prerequisite that the misrepresentation has deceived or is likely to deceive and that the
Plaintiff is likely to suffer damage by such deception.
The same was also cited in T.V. Venugopal vs. Ushodaya Enterprises Ltd. and Ors10.

Also in Wockhardt Ltd. Vs. Torrent Pharmaceuticals & Anr11.

The Supreme Court, in its judgement, examined the following issues:
Whether Torrent was able to establish the three elements of passing off, that is:
 its goodwill;
 misrepresentation by Wockhardt; and
 damage to its goodwill because of Wockhardt's misrepresentation.
The Supreme Court found that the Division Bench was right in deciding that the Torrent
product's reputation was sufficiently established by its sales figures. On the point of
misrepresentation, the Supreme Court referred to one of its previous judgments in Laxmikant V.
Patel vs. Chetanbhai Shah & Anr., where it held that the intention to defraud was not required to
(xiv)

9
Perry v. Truefitt, (1842) 6 Beav. 66.
10
T.V. Venugopal vs. Ushodaya Enterprises Ltd. and Ors., JT 2011(3) SC 225.
11
Wockhardt Limited Vs. Torrent Pharmaceuticals Ltd. and Ors., A.I.R 2018 SC 5106.

WRITTEN ON BEHALF OF APPLICANT

be proven for establishing misrepresentation in a passing off action. On the point of damage, the
Supreme Court again concurred with the Division Bench and opined that, when a case of
goodwill and misrepresentation has been proven, 'a likelihood of damage to the goodwill' is
presumed.

3. Damage
From the facts of the case it is clear that when the news spread that Shahi Mughlai Darbar
has spread its wings the sales of packaged mutton biriyani skyrocketed, this is sufficient
to establish damage to plaintiff’s business as people bought packaged mutton biriyani
under the impression that it was from Shahi Mughlai Darbar.
Also time and again it has been reiterated in several cases that only if goodwill and
misrepresentation is proved damage is presumed and also that foreseeability of damage is
sufficient in passing off cases and proving of actual damage is caused is not necessary.
In Palm Grove Beach Hotels Pvt. Ltd. vs. Royal Palms (India) Pvt. Ltd12 G.S. Patel, J has
reaffirmed that –
“A plaintiff need not prove actual or special damage; a reasonably foreseeable probability
is sufficient”.
Christopher Wadlow in Law of passing Off (1995 Edition at p.3.06) states that the
plaintiff does not have to prove actual damage in order to succeed in an action for passing
off. Likelihood of damage is sufficient.

III. Whether the adoption of the mark SMD by the defendants is diluting the
distinctiveness of the Plaintiff’s trade mark and is the plaintiff entitled to
injunction?
In Pidilite Industries Limited v. Poma-Ex Products & Ors13.
(xv)

12
Palm Grove Beach Hotels Pvt. Ltd. vs. Royal Palms (India) Pvt. Ltd, 2016 (6) BomCR 366.
13
Pidilite industries v. Poma-Ex products, 2017 (72) PTC 1 (Bom).

WRITTEN ON BEHALF OF APPLICANT

 The Court held that the mark ‘KWIKHEAL’ used by the Defendants is prima facie
deceptive and misleading. The Court was also of the opinion that the Defendants have
adopted identical packaging to ride on the reputation of the Plaintiff. The Court further
held that there exists a high degree of phonetic similarity between the mark.

of the Plaintiff “FEVIKWIK” and the mark of the Defendants “KWIKHEAL”, as the
word “KWIK” is a dominant part of the Plaintiff’s trademark. The Court issued an
injunction in favor of the Plaintiff.

Even in the present case the mark SMD used by the defendants is prima facie deceptive
and misleading as there is phonetic similarity.

Also in Puma Se & Anr. v. Nikhil Thermoplast Ltd. & Ors14 it was held that-
The Court considered the evidences and arguments submitted by the Plaintiff and held
that due to extensive use over a substantial period of time, the Plaintiffs’ PUMA mark
along with the Form Strip Logo has acquired reputation and goodwill. The Court further
opined that the use of the impugned mark by the Defendant is bound to cause
incalculable loss of reputation and sales to the Plaintiff. The Court, therefore, granted a
permanent injunction in favor of the Plaintiff.

In granting or not granting ad interim injunction, it is settled law. three factors have to be
kept in view, namely, the establishment of a prima facie case, the balance of convenience
between the parties and whether if the interim injunction is not issued it will cause
irreparable injury to the applicant15.
 Prima Facie case
From the facts of the case we know that Shahi Mughlai Darbar was set up after
independence in old Delhi which was popularly known as SMD, so it is apparent that it
was a prior user and it was often ranked as one of the best places to have Biriyani in
(xvi)

14
Puma Se & Anr. v. Nikhil Thermoplast Ltd. & Ors, CS(COMM) 992/2016.
15
Century Traders Vs. Roshan Lal Duggar Co., AIR 1978 Delhi 250.

WRITTEN ON BEHALF OF APPLICANT

 Delhi and tourists would include a meal as a part of local sight itinerary, people had come
to associate Shahi Mughlai Darbar with exceptional delicious biriyani and to preserve the
quality and authenticity of the restaurant a different branch was never opened, but in
2019 the packaged mutton biriyani introduced by Sam Maxwell without any notice or
advertisement diluted the distinctiveness of the Shahi Mughlai Darbar’s biriyani and
because of the use of deceptively similar mark the quality and authenticity that Shahi
Mughlai Darbar was trying to preserve is no longer maintainable. As soon as the plaintiff
became aware of this existence of the packaged mutton biriyani under the trademark
SMD which was same name and style as used by the plaintiff, the plaintiff immediately
through his counsel issued a legal notice to the defendant but the notice was replied in
unbefitting manner that the business would be placed under different classes of the
trademark rules and class of persons targeted were different but disregarding the
technicalities of different classes it is reasonable to note that both were biriyani’s, the
same dish therefore there is no further need to prove that products of these two businesses
and targeted customers were different, therefore the same dish sold under the same name
and style deceived people into believing that they were originating from Shahi Mughlai
Darbar.
As was contended in Hindustan Radiators Co. v. Hindustan Radiators Ltd16.
In an action for infringement of trade mark or of passing off, in order to establish a prima
facie case for grant of ad interim injunction, it is incumbent upon the plaintiff to show (a)
that plaintiff has been using its trading style and trade mark for quite a long period and
continuously whereas the defendant has entered into the said field only recently, (b) that
there has not been much delay in the filing of the suit for injunction by the plaintiff, (c)
that the goods of the plaintiff have acquired a distinctiveness and are associated in the
mind of the general public as goods of the plaintiff, (d) that nature of activity of the
plaintiff and the defendant is same or similar, (e) that the goods of the parties to which
the trade mark of the plaintiff is associated are same or similar, (f) that the user of the
said trade mark or trade name by the defendant is likely to deceive and cause confusion in
the public mind and injury to the business reputation of the plaintiff, (g) that the sphere of
(xvii)

16
Hindustan Radiators Co. v. Hindustan Radiators Ltd, AIR 1987 Del 353.

WRITTEN ON BEHALF OF APPLICANT

activity and the market of consumption of goods of the parties are the same, (h) that the
customers of the plaintiff, inter alia, include uneducated, illiterate and wary customers
who are capable of being deceived or confused or misled.
In this case of Hindustan Radiators Co. vs Hindustan Radiators Ltd the defendants were
restrained from using the trading style in any manner whatsoever or to pass off their
business and goods as business and goods of the plaintiff.

A perusal of above stated facts show that the plaintiff in the instant case has prima facie
established all these ingredients which farther leads to the conclusion that plaintiff has
established a prima facie case for grant of ad interim injunction in the instant matter.

 Balance of convenience
As it is already established that plaintiff had acquired extensive goodwill and
reputation so much so that people had come to associate Shahi Mughlai Darbar
with its exceptional biriyani and when the news spread that Shahi Mughlai Darbar
has spread its wings the sales of the Sam Maxwell’s packaged Biriyani
skyrocketed because people bought it under the impression that it originated from
Shahi Mughlai Darbar as they had never heard of the existence of the brand Sam’s
Mutton delight and there was deceptive similarity between the marks all this made
it convenient for the defendant to make good profits. Therefore, the general public
was deceived and is still likely to be deceived if the defendant is allowed to carry
on the business which causes major harm to the plaintiff’s business and also it is
invasion of the proprietary rights invested in the plaintiff which it has acquired by
being early user and having invested large sums into the business over time,
Plaintiff has successfully established a prima facie case and for all the reasons
mentioned above the balance of convenience lies in the favor of plaintiff.
If the interim order as prayed is not granted the plaintiff will be put to greater
hardship and cause irreparable loss. On the other hand, no hardship is going to
cause defendants.
(xviii)

WRITTEN ON BEHALF OF APPLICANT

 In Sun Pharma Laboratories Ltd. v. Lupin Ltd. & Anr17. -
The court noted that the passing off rights are considered to be superior to that of
registration rights. It was observed that passing off in common law is considered to be a
right for protection of goodwill in the business against misrepresentation caused in the
course of trade and for prevention of resultant damage on account of the said
misrepresentation. The court noted that plaintiff is a prior user of the trade mark
TRIVOLIB and it commenced use of the trade mark in October 2011. While relying on
various case laws, the Court held that the Defendant’s mark was indeed deceptively
similar to the Plaintiff’s mark and thus affirmed the earlier order of interim injunction
passed in this matter.

 Irreparable Damage
In Win-Medicare Ltd. vs Dua Pharmaceuticals Pvt. Ltd18 it was observed that-
Once a prima facie case is established, balance of convenience would follow. Even otherwise the
question of balance of convenience would arise only when the parties are practically on the same
level and their rights are equal. However, in the case in hand the plaintiff's position is definitely
superior to that of the defend ant who intends to use the trade name deceptively similar to the
trade name of the plaintiff and consequently there is no difficulty in holding that balance of
convenience at this stage lies in the grant of ad interim injunction in favor of the plaintiff.

24. Coming to the question of irreparable injury, it needs to be mentioned here that where the
plaintiff has established a prima facie case and the balance of convenience is also in favor of the
plaintiff, the Court can assume that irreparable injury would necessarily follow if an ad interim
injunction, as prayed for, is not granted. The irreparable injury in the present case would be the
likely confusion that may because if the defendant is allowed to use the trade name which is
prima facie the trade name of the plaintiff. Moreover, it will take quite some time before this suit
is finally decided and if the defendant is not restrained by means of an ad interim injunction, it
would continue to use the trade name deceptively similar to the trade name of the plaintiff and
(xix)

17
Sun Pharma Laboratories Ltd. v. Lupin Ltd. & Anr, 2018 (74) PTC 103 (Del).
18
Win-Medicare Ltd. vs Dua Pharmaceuticals Pvt. Ltd, AIR 1996 Del 612.

WRITTEN ON BEHALF OF APPLICANT

would continue to market its goods with the deceptively similar trade name of the plaintiff. Thus
the likelihood of confusion being caused cannot be ruled out. It also cannot be ruled out that in
the absence of an ad interim injunction the defendant would continue to pass off its goods with
deceptively similar trade name as that of the plaintiff's thereby causing irreparable damage to the
reputation of the plaintiff besides causing pecuniary loss. Even otherwise injunction would not
be refused unless the supposed consequences of deception are remote, speculative and
improbable. Once the plaintiff has established that he has got a prima facie case, he prima facie
would be entitled to ad interim injunction and heavy burden would lie upon the defendant to
prove that the plaintiff should not be granted ad interim injunction. In my opinion, viewed from
all angles the plaintiff in the present circumstances, at this stage, decidedly is entitled to ad
interim injunction, prayed for.
As observed in Win-Medicare Ltd. vs Dua Pharmaceuticals Pvt. Ltd even in the present suit
prima facie case has been established, balance of convenience is in favor of the plaintiff and
Substantial damage has been caused to the plaintiff’s business and not granting interim
injunction would further lead to irreparable damage and for all these reasons the plaintiff is
entitled to interim injunction.

(xx)

WRITTEN ON BEHALF OF APPLICANT

 PRAYER

Wherefore in the lights of facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed before this Hon’ble court that it may adjudge and
declare:

i. To accept the application and grant interlocutory injunction.

ii. To issue any appropriate directions and orders as the Hon’ble Court deems fit in the
interest of justice, equity and good conscience.

AND/OR
Pass any other order, direction or relief that it deems fit in the interest of Justice, Equity
and Good Conscience.

AND FOR SUCH ACT OF KINDNESS YOUR APPLICANT SHALL BE IN DUTY AS

EVER PRAY

(xxi)

WRITTEN ON BEHALF OF APPLICANT