Author: Shreya Das
In the matter of D&H India Ltd. v. Superon Schweisstechnik India Ltd. [FAO (OS) (COMM) 237/2019 & CM APPL. Nos. 42840/2019, 42841/2019 & 230/2020)], the Delhi High Court, vide its order dated March 16, 2020, upheld the Single Judge’s decision allowing an application for amendment of plaint before commencement of trial.
The Respondent-Plaintiff is the registered proprietor of the trademark SUPERON and was aggrieved by the Appellant-Defendant’s adoption and use of the trademark SUPERCROME in respect of identical products. Accordingly, the Respondent filed a suit seeking permanent injunction against the Appellant, to restrain it from infringing and passing off the mark SUPERON. In the Plaint, the Respondent had claimed adoption and use of the mark SUPERON since 2004. Subsequently, the Respondent filed an application under Order VI Rule 17 of the Code of Civil Procedure (CPC) to amend the year of adoption of its mark to 1994. The Single Judge allowed this amendment request. The Appellant filed the instant appeal, claiming that allowing the amendment would alter the character of the suit and prejudice the Appellant.
Order VI Rule 17 of the CPC allows “all such amendments…as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced…”. The Court noted that in the present case, the proviso was inapplicable as the trial had not commenced when the Respondent applied for amendment of its plaint. Therefore, the Court had to determine whether the amendment sought was “necessary for the purpose of determining the real questions in controversy”.
The Court observed that “the controversy…was relating to alleged infringement, and passing off…prior user is one of the essential indicia, to be examined while adjudicating such a claim…the date from which the plaintiff-respondent was using the SUPERON trademark was, therefore, fundamental to adjudication of the controversy”. Accordingly, while upholding the Single Judge’s decision and allowing the amendment, the Court stated that “the court, adjudicating on an application for permission to amend the plaint, at the pre-trial stage, is to ensure that…the right of the party, seeking amendment, to bring relevant facts, to the notice of the court, is not prejudiced…were the prayer for amendment…to be disallowed…the prejudice…to the respondent…as a consequence thereof, would be irreversible.”
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