J&K HC Upholds Refusal To Temporarily Halt Rival ‘SUPER AGRO-TECH’ Sales, Citing No Proof Of Longstanding Use

The appellant sued the respondents alleging that their use of “SUPER AGRO-TECH” and similar packaging infringed the appellant’s trade-mark and copyright rights and amounted to passing off.

It claimed prior use of its marks, including “HI-TECH AGRO TONIC” and “SUPER HI-TECH AGRO TONIC,” since 2001, and relied on trade-mark registrations and applications, market reputation, and alleged similarity in packaging.

The respondents disputed the appellant’s claimed use and reputation, contending that the expressions and design features were descriptive or common to trade, and that the rival presentation was distinguishable.

The High Court initially granted ex parte interim relief, but the suit was transferred to the Commercial Court, which dismissed the appellant’s application under Order XXXIX Rules 1 and 2 CPC and vacated the interim order.

The appellant appealed and sought leave to introduce invoices for 2017–2018 as additional evidence.

Under the common-law action of passing off, a plaintiff must establish goodwill or reputation associated with its goods or mark, a misrepresentation by the defendant likely to lead the public to believe that the defendant’s goods are those of, or connected with, the plaintiff, and resulting or likely injury.

Section 27(1) of the Trade Marks Act, 1999 bars an action for infringement of an unregistered trade mark; registration for a different class of services does not establish registration for the relevant goods.

An appellate court will interfere with a discretionary order on interim injunction only where the trial court acted arbitrarily or contrary to law, or its findings are perverse, capricious, palpably incorrect, or untenable.

The Court found that the appellant had produced no contemporaneous business records, invoices, balance sheets, or other documents supporting its asserted use of the marks from 2001 or 2011, or establishing business activity before incorporation in 2017.

The pleadings alone therefore did not establish prima facie goodwill or reputation necessary for passing off.

The additional invoices related only to 2017–2018 and, in the Court’s view, did not demonstrate use for a sufficiently long period to alter that conclusion.

The marks relied on for the appellant’s products were not registered for those goods; the appellant’s registration in Class 35 did not support an infringement action concerning its products, and its product-mark application remained unregistered.

The Court consequently found no perversity or illegality warranting appellate intervention.

Finding no basis to disturb the Commercial Court’s discretionary decision, it dismissed the appeal and left in place the refusal of interim relief and vacation of the ex parte injunction.