HC issues interim injunction on defendant

Sarath MALALASEKERA

The Colombo Commercial High Court Judge Rohini Walgama issued an interim injunction against the defendant in an application filed by Baby Care (Private) Limited.

The Plaintiff Baby Care Private Limited Colombo 3 cited Nilantha Jayasinghe of Kandy Road, Kiribathgoda as defendant.

The Judgement stated - Callman's Treates on unfair Competition fourth Edition, on motives of selection of trade marks states thus:- "A boundless choice of words, phrases and symbols are available to one who wishes to mark to distinguish his product or service from others. When a Defendant selects from this unlimited field a trade mark confusingly similar to the mark publicly associated with the Plaintiff's product, then it would appear that the Defendant made the particular choice in order to trade upon the Plaintiff's established reputation. If there is no reasonable explanation for the Defendant's choice of such a mark though the field of this section was so broad the inference is inevitable that it was chosen deliberately to deceive." (emphasis added).

Therefore, in the above backdrop it is abundantly clear that the Plaintiff has made out a prima facie case of the fact that his legal rights have been violated by the Defendant by using the above trade mark "Baby Care." The Court also of the view according to the material surfaced above the balance of convenience should favour the Plaintiff.

It is stated by the Plaintiff that the defendant is a person carrying on business under the name "Osaka Baby Care" and involved in the sale of identical products of the plaintiff. It is to be noted that the Defendant too is carrying on the business at the same vicinity. Therefore, it is the contention of the Plaintiff that the Defendant by using a trade name to that of the Plaintiff will create a confusion among the customers as the trade name which has been used by the Defendant is very much similar to the trade name used by the plaintiff.

The Judgement also stated- it also apparent from the choice of the Defendant to have a trade name confusingly similar to that of the Plaintiff, is only to piggy back on the reputation of the Plaintiff's on the alleged trade mark. It is being observed by the many judicial dictum that the above situation is tantamount to a unfair competition within the terms of the relevant law. In the case of Perry vs. Truefitt it was held that "A man is not to sell his own goods under the pretence that they are the goods of another man" (emphasis added).

The order also stated -the plaintiff has instituted the instant action for a claim as a substantive relief in a form of a declaration that the defendant is not entitled directly or indirectly by himself or by his servants, employees, agents or whomsoever holding under him to use a trade name that consists of the words Baby care or any other trade name that is confusingly similar to the trade name Baby Care in relation to any enterprise engage in selling infants or kids or maternity products.

President's Counsel Dr. Harsha Cabral with Kushan Illangathilaka instructed by V. W. Kularatne appeared for the plaintiff "Baby Care (Pvt) Limited."