The Delhi High Court in an appeal relating to the trademark held that the appellant forum cannot discharge functions of the Court if the arguments advanced by the appellant are without any plausible explanation.

The Court said that the appellant can neither be permitted of canvassing a case beyond the purview permissible by pleading new grounds and raising new pleas not forming a part of the records before the Trial Court nor can be allowed to fill in the blanks to carve out something which was missing with a view to fill up the lacuna or improve upon the existing facts from that which was before the Trial Court.

A Division Bench comprising Justice Manmohan and Justice Saurabh Banerjee observed, “As appellant in the present appeal, in addition to filing fresh documents (which have already been dealt hereinbefore), has tried to agitate and rely upon averments and pleadings beyond pleadings before the learned Trial Court, the same cannot be considered for adjudication under Order XLIII rule 1(r) of the CPC. … Appellate forum is not to discharge the functions of a Court of first instance as the ambit of an appeal before it is not as vast as it is before the Court below, merely because a different view is possible from the plausible view taken by the Court of first instance below.”

The Bench also observed that the appellate forum should not rehear similar arguments before it as it is not to substitute its view for a plausible view which in its opinion is or can be otherwise to what has been held by the Trial Court.

Advocates J. Sai Deepak and Kangan Roda represented the appellant while Advocates Gaurav Barathi and Muskan Arora represented the respondent.

In this case, the appellant company was dealing in selling ‘Shikanji’ under the name and style of ‘Jain Shikanji’. The appellant approached the High Court to adjudicate upon the legality of the Trial Court’s order whereby it was restrained from using the trademark ‘Jain Shikanji’ of the respondent, the other Jain family member.

The High Court in view of the facts and circumstances of the case noted, “… though the appellant has filed an application under Order XLI rule 27 of the CPC seeking permission to bring on record few additional documents, however, no arguments qua the said application were ever addressed by the learned counsel for appellant at any stage. … Appellant‟s application under Order XLI rule 27 of the CPC cannot be allowed as no arguments were addressed qua it and being without any plausible explanation and/ or reasoning of their non-filing before the learned Trial Court despite prior knowledge thereof. Alas, the said application is bereft of any substance.”

The Court further noted that an appeal under Order XLIII Rule 1(r) of the CPC is to be and can be only considered based on the material/ documents produced and forming a part of the record before the Trial Court and that a duty is cast upon a party like appellant while approaching the Appellate forum to confine its case to what it was before the Court below and not to put forth a fresh case by urging fresh points on the basis of fresh documents for the first time which were neither urged as they were never forming a part of the record before the Trial Court.

“… today it is a matter of common knowledge that mark(s) such as INDIA TODAY, UNDER ARMOUR, HEAD & SHOULDERS, TECH MOON, STUDIO MOSAIC, BLACK BULL, AMERICAN EAGLE, AMERICAN AIRLINES, AGARWAL PACKERS & MOVERS, HOLIDAY INN, STUDIO DEPOT, FAIR & LOVELY, VICTORIA SECRET, RED BULL etc. which, though, are a combination of two separate generic words as one singular mark, very much exist and have been adopted and used all across the globe. Such trade mark(s), after acquiring distinctiveness and upon gaining goodwill are recognized to have built a reputation to qualify as a well-known mark amongst the public at large. Needless to say, such trade mark(s) are most certainly capable of being applied for and being registered”, said the Court.

The Court asserted that an appellate forum has a very limited role to play while exercising jurisdiction under the CPC. It was also observed by the Court that the appellant was unable to make out a case for interference by the Court.

Accordingly, the Court dismissed the appeal.

Cause Title- Jain Shikanji Private Limited v. Satish Kumar Jain (Neutral Citation: 2023/DHC/001486)

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