Innovations Garment Pvt. Ltd. v. Bhavesh Ramjibhai Gada

12. Dr. Tulzapurkar, Learned Senior Counsel appearing on behalf of the Plaintiff, at the outset submitted that the Defendants’ contention of suppression of material facts by the Plaintiff was wholly misconceived and devoid of merit. He submitted that the Defendant’s sole intention was to divert the attention of the Court from the fact that the Defendant had Vaibhav Note: This Judgment is corrected/modified pursuant to the order dated 14th November 2025. absolutely no answer to the Plaintiff’s claim on the merits. He took pains to point out that the Defendant had not even attempted to offer any justification for the continued and blatant infringement of the Plaintiff’s registered trade mark and copyright. He submitted that it was thus clear that the Defendants were rank infringers, and the allegations of suppression made by the Defendants were entirely baseless and misconceived, both in fact and in law.

13. He then pointed out that the Plaintiff is not only the registered proprietor of the said trade mark but also the registered owner of the copyright subsisting in the artistic work bearing registration No. A- 136633/2021 (“the Copyright”). He submitted that both the trade mark and the copyright registrations were valid and subsisting and thus constituted a statutory recognition of the Plaintiff’s exclusive proprietary rights in the said mark and artistic work.

14. Dr. Tulzapurkar then submitted that since the year 2013, the Plaintiff was engaged in the business of manufacturing and selling clothing, including uniforms and ready-made garments, and has been continuously using the said trade mark in relation to these goods and services. He submitted that as a result, the Plaintiff had built substantial goodwill and reputation in the said mark, which was both long-standing and well established. In contrast, he pointed out that the Defendants were rank infringers who had adopted an identical or deceptively similar mark to the Plaintiff’s registered trade mark without any licence, authority, or assignment from the Plaintiff. He therefore submitted that the Defendants’ Vaibhav Note: This Judgment is corrected/modified pursuant to the order dated 14th November 2025. actions amount to both infringement and passing off, and that the ex-parte ad-interim orders dated 7th May 2024 had been rightly granted since this Court was satisfied that the Plaintiff had established a strong prima facie case and that the balance of convenience was entirely in favour of the Plaintiff.

15. Dr. Tulzapurkar submitted that the entire foundation of the Defendant’s case was that the Plaintiff had suppressed the existence of the First Suit, which, according to the Defendant, amounted to suppression of a material fact. He pointed out that this was based on two alternative contentions (i) that the Defendants were expressly impleaded as parties to the First Suit, and (ii) even assuming otherwise, since the First Suit was instituted as a ‘John Doe/Ashok Kumar’ action, it was an action in rem and would therefore encompass all infringers, including the present Defendants. He submitted that both these contentions were fundamentally misconceived, factually incorrect, and legally untenable.

16. Dr. Tulzapurkar, in dealing with the Defendants’ first contention, namely, that the Defendants were a party to the First Suit submitted that such an assertion was plainly false and misleading. He pointed out, from the cause titles of both Suits, that the entity “Ankur”, impleaded as Defendant No. 4 in the First Suit, was a separate and distinct entity from the Defendants in the present Suits. He pointed out that this was evident from the fact that the addresses as well as the GST numbers of each of the entities named ‘Ankur’ were different. He therefore submitted that, apart from a mere similarity in name, the Defendants to the present Suits and Defendant No. 4 in the First Vaibhav Note: This Judgment is corrected/modified pursuant to the order dated 14th November 2025. Suit were distinct and independent legal entities. Dr. Tulzapurkar also took pains to point out that the Defendants had failed to produce any material to demonstrate even a nexus or relationship between the Defendants in the present Suits and Defendant No. 4 in the First Suit, much less to establish that they were one and the same entity.

17. Dr. Tulzapurkar then submitted that the Defendants had deliberately withheld the complete set of papers and proceedings in the First Suit in order to create a false impression that the Defendants in the present Suits were party to the First Suit. He pointed out that the Plaintiff, in the Affidavit in Rejoinder, had annexed the entire record of the First Suit, which clearly reflected that not only were the present Defendants not parties to the First Suit, but also that no summons or notice was ever issued to any of the Defendants in the First Suit, nor was any relief sought or granted against Defendant No. 4 in the First Suit.

18. Dr. Tulzapurkar submitted that the Defendants had also conveniently failed to disclose that the First Suit had been dismissed for default, and thus there had been no adjudication on the merits of the claims made in the First Suit. He therefore pointed out that there were no findings which were binding on the parties and which would in any manner affect or impact the present Suit. He submitted that even assuming, without admitting, that the Defendants in the present Suits were party to the First Suit, the dismissal of the First Suit for default rendered it non est in the eyes of law. He submitted that a Suit dismissed for default does not operate as res judicata, nor does it Vaibhav Note: This Judgment is corrected/modified pursuant to the order dated 14th November 2025. create any estoppel or bar against subsequent proceedings on the same cause of action. Accordingly, he submitted that the Defendants’ reliance on the First Suit was entirely misplaced, as it had no relevance to the present proceedings. He then submitted that the First Suit was wholly immaterial and hence was not required to have been disclosed in the present Suit.

19. Dr. Tulzapurkar also pointed out that the provisions of Order XXXIX Rule 4 of CPC could only be invoked if it was established that the injunction was obtained by suppression of material facts. He submitted that the existence of an earlier Suit which was dismissed for default and did not concern the Defendants in the present Suits would not constitute a material fact, the non-disclosure of which would vitiate the ex-parte ad-interim order. It was thus that he submitted that the Defendants’ first contention was, therefore, based entirely on conjecture, a misreading of the record, and deliberate suppression of context.

20. Dr. Tulzapurkar then, in dealing with the next contention, i.e., that the First Suit was an action in rem and would therefore also include the Defendants in the present Suits, submitted that such contention was based on a complete misunderstanding of the nature and scope of 'John Doe/Ashok Kumar' actions as recognised under Indian law. He pointed out that a 'John Doe/Ashok Kumar' Suit was a procedural innovation intended to enable a Plaintiff to obtain protective orders against unknown infringers whose identities were not ascertainable at the time of filing the suit. He submitted that such suits were not and could never be treated as actions in rem but Vaibhav Note: This Judgment is corrected/modified pursuant to the order dated 14th November 2025. were actions in personam. He submitted that it was only because, at the stage of institution of such suits, the identity of the infringers was unknown that such suits were instituted by arraying the infringers as 'John Doe/Ashok Kumar'. He submitted that upon discovery of the identity of the infringers, the pleadings were amended, and the infringers were then joined by name.

21. He submitted that the Defendants’ interpretation would lead to an absurd and legally impermissible result, namely that a single ‘John Doe/Ashok Kumar’ suit would perpetually cover all future infringers. He submitted that if such a contention were to be accepted, then a Plaintiff could proceed indefinitely against all infringers, whether related or not, without ever instituting fresh proceedings. He submitted that this would not only be contrary to Order I Rule 3 of the CPC but also the fundamental principles of natural justice, as it would deem a person/entity to be bound by a decree in proceedings to which such person/entity had no opportunity to contest.

22. Dr. Tulzapurkar then submitted that ‘John Doe/Ashok Kumar’ jurisprudence had been developed by the Courts to balance enforcement of intellectual property rights with procedural fairness, and not to obliterate it. It was thus he submitted that the Defendants’ contention that a ‘John Doe/Ashok Kumar’ suit was an action in rem was misconceived and legally untenable.

23. Dr. Tulzapurkar submitted that the Defendants’ reliance on the circulars prohibiting schools from insisting that students purchase goods from appointed vendors was wholly irrelevant to the present proceedings. He Vaibhav Note: This Judgment is corrected/modified pursuant to the order dated 14th November 2025. pointed out that the Plaintiff is neither an educational institution nor a body governed by such circulars. He pointed out that the Plaintiff is a separate legal entity, distinct from the Society, and is engaged in the lawful business of manufacturing and selling clothing, garments, and uniforms in the open market. He pointed out that the Plaintiff being the registered proprietor of the said trade mark, there was no legal prohibition preventing the Plaintiff from carrying on its legitimate trade and business.

24. He further submitted that the scope of the present Suit was strictly confined to issues of infringement of the Plaintiff’s registered trade mark, copyright, and passing off under the Trade Marks Act, 1999, and the Copyright Act, 1957, and that the Defendants’ attempt to rely on circulars issued by the education authorities and thereby convert these proceedings into a public interest litigation was entirely misconceived and legally impermissible.

25. He also pointed out that the Defendants’ contentions were selfcontradictory, inasmuch as, on the one hand, the Defendants claimed to have been impleaded as Defendant No. 4 to the First Suit, while on the other hand, have asserted that since the First Suit was a ‘John Doe/Ashok Kumar’ action, the same would cover all unknown infringers, including the Defendants. He submitted that these contentions were mutually destructive and thus exposed the falsity of the Defendant’s case. He reiterated that the Plaintiff had neither suppressed any material fact nor misled this Hon’ble Court in any manner.

26. Dr. Tulzapurkar then invited my attention to Order XXXIX Rule 4 of Vaibhav Note: This Judgment is corrected/modified pursuant to the order dated 14th November 2025. the CPC and pointed out that an order of injunction granted under Rules 1 or 2 may be discharged, varied, or set aside by the Court upon an application made by any party dissatisfied with such order. He, however, pointed out that the proviso to Rule 4 specifically stipulated that where an injunction has been granted without notice to the opposite party, such injunction shall not be discharged, varied, or set aside unless the Court is satisfied that the party obtaining the injunction has misrepresented or concealed material facts. He submitted that the scope and object of Order XXXIX Rule 4 was, therefore, limited, and the inquiry contemplated under this provision was confined solely to examining whether the injunction was obtained by misrepresentation or suppression of material facts and did not extend to a reconsideration of the underlying merits of the case. In support of this submission, Dr. Tulzapurkar placed reliance on the decisions of this Court in Laser Shaving (India) Pvt. Ltd. v. RKRM International Products Pvt. Ltd.[4] and K.L.F. Nirmal Industries Pvt. Ltd. v. K.L.F. Nirmal Industries Pvt. Ltd.[5]

27. Basis the above, he submitted that the Defendants cannot, under the guise of an application under Order XXXIX Rule 4 of the CPC, seek to reopen or argue issues of infringement, ownership, or validity of the Plaintiff’s statutory rights and that the merits of the Plaintiff’s claim were to be tested at the stage of deciding the Plaintiff’s application under Order XXXIX Rule 1 and 2 and not by invoking the provisions of Order XXXIX Rule 4. He thus submitted that the Defendants’ attempt to use Order XXXIX Rule 4 as a

Vaibhav Note: This Judgment is corrected/modified pursuant to the order dated 14th November 2025. means to revisit the substantive merits of the Plaintiff’s infringement action is wholly impermissible and contrary to the legislative intent of the provision.

28. Dr. Tulzapurkar submitted that the Defendants had failed to make out any case for setting aside the ex-parte ad-interim order dated 7th May 2024. He reiterated that the Defendants’ contentions rested on misconceived legal propositions, misstatements of record and extraneous considerations wholly irrelevant to the limited inquiry under Order XXXIX Rule 4 of the CPC. He submitted that the Plaintiff had made a full and fair disclosure of all material facts relevant to the present Suit and that the Plaintiff, being the registered proprietor of the said trade mark as also the owner of the said copyright, had made out a strong prima facie case for protection of its registered trade marks and copyrights. He submitted that both the balance of convenience and equity lie entirely in favour of the Plaintiff, and that it was imperative for this Court to confirm the ex-parte ad-interim Order to prevent irreparable injury to the Plaintiff more so when the Defendant did not have nor had asserted even the semblance of any right to use the Plaintiff's registered trade mark and copyright.

REASONS AND CONCLUSIONS:

29. Having heard the Learned Senior Counsel for the parties and upon carefully considering their rival submissions as well as the case law relied upon, I have no hesitation in rejecting the Defendant’s contention that the Vaibhav Note: This Judgment is corrected/modified pursuant to the order dated 14th November 2025. Plaintiff had obtained the ex-parte ad-interim order by suppression of material facts for the following reasons:

Affidavit in Reply rests on an allegation of suppression of material facts by the Plaintiff and on no other ground. The Defendants have not even attempted to offer any justification or explanation for their use of the impugned trade mark of which the Plaintiff is the registered proprietor, as clearly evidenced from the copyright certificate which can be found at Exhibit-B of the present suits. Thus, the Defendants, on their own showing, are rank infringers.

Entertainment Pvt. Ltd. also does not support the Defendants’ contention that a ‘John Doe/Ashok Kumar’ Suit is an action in rem. On the contrary, the said judgement specifically records that “Since names and addresses of such cable operators/persons are not known, they have been collectively arrayed as defendant nos. 6 to 30 in the assumed name of ‘Mr Ashok Kumar.” Thus, there is no finding or even suggestion that the order passed in a ‘John Doe/Ashok Kumar’ would bind the world at large. On the contrary, it envisaged that such unknown persons would be identified and joined as defendants in due course.

I. It is well settled that the power under Order XXXIX Rule 4 of the

CPC is circumscribed by the proviso which states that an ex-parte injunction can be vacated only if the Court is satisfied that the order was obtained by misrepresentation or concealment of material facts. The enquiry under Rule 4 does not involve a re-examination on the merits. The object of Order XXXIX Rule 4 is limited to ensure that Vaibhav Note: This Judgment is corrected/modified pursuant to the order dated 14th November 2025. the Court is not misled into granting a protective order on the basis of deliberate or material non-disclosure.

30. Given that in the facts of the present case I am satisfied that the exparte ad-interim order dated 7th May 2024 was not obtained by either misrepresentation or concealment of material facts. Hence the question of setting aside/vacating the said Order under the provisions of Order XXXIX Rule 4 does not arise. As already noted above, the Defendants are rank infringers who do not have a semblance of a right to use the Plaintiff’s registered trade mark and copyright, despite which the Defendants have done so with impunity. Hence, I pass the following order: ORDER i. Interim Application No.2312 of 2025 filed by the Defendant in Commercial IP Suit No. 80 of 2025, under Order XXXIX Rule 4 of the Civil Procedure Code, 1908 is rejected. ii. The Interim Application No. 1681 of 2025 in Commercial IP Suit No. 80 of 2024, Interim Application No. 1802 of 2025 in Commercial IP Suit No. 294 of 2024 and Interim Application No. 1322 of 2024 in Commercial IP Suit NO. 101 of 2024 are allowed and disposed of in terms of prayer clauses (a), (b) and (c). [ARIF S. DOCTOR, J.] Vaibhav Note: This Judgment is corrected/modified pursuant to the order dated 14th November 2025.